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[F.A.Q.]
Nauru Sessional Legislation |
REPUBLIC OF NAURU
CRIMINAL PROCEDURE ACT 1972
(No. 21 of 1972)
ARRANGEMENT OF SECTIONS
PART
I
PRELIMINARY
Section
1.
Short title and commencement
2.
Interpretation
3. Trial of
offences
PART
II
POWERS OF THE
COURTS
4. Power to try offences
under the Criminal Code
5. Power to
try offences under other laws
6.
Sentences which the Supreme Court may
pass
7. Sentences which the District
Court may pass
8. Combination of
sentences
9. Separate sentence to be
passed for each offence
PART
III
ARREST OF
OFFENDERS AND PREVENTION OF OFFENCES
10. Arrest without
warrant
11. Mode of making
arrest
12. Entry to arrest person
under warrant
13. Power to break out
of house, etc., for purpose of
liberation
14. No unnecessary
restraint
15. Search of arrested
persons
16. Power of police officer to
detain and search persons, vehicles, vessels and aircraft in certain
circumstances
17. Power to seize
offensive weapons
18. Refusal to give
name and residence
19. Disposal of
person arrested by a police
officer
20. Disposal of person
arrested by private person
21.
Detention of persons arrested without
warrant
22. Police officer to report
certain arrests
23. Offence committed
in magistrate's presence
24. Arrest by
magistrate
25. Recapture of person
escaping
26. Assistance to magistrate
or police officer
27. Security for
keeping the peace
28. Order to be
made
29. Procedure in respect of
person present in court
30. Summons or
warrant in case of person not present in
court
31. Copy of order under section
28 to accompany summons or warrant
32.
Power to dispense with personal
attendance
33. Inquiry as to truth of
information
34. Order to give
security
35. Discharge of person
informed against
36. Commencement of
period for which security is
required
37. Power to reject
sureties
38. Procedure on failure of
person to give security
39. Power to
release persons imprisoned for failure to give
security
40. Power of Supreme Court to
cancel recognizance
41. Discharge of
sureties
42. Power to arrest and
produce before Court person attempting to kill himself
PART
IV
PROVISIONS
RELATING TO CRIMINAL PROCEEDINGS
43. General authority of
District Court
44. Court to be
open
45. Appointment of Director of
Public Prosecutions
46. Power of
Director of Public Prosecutions to enter nolle
prosequi
47. Delegation of powers by
Director of Public Prosecutions
48.
Public prosecutors and prosecution by police
officers
49. Powers of public
prosecutors
50. Conduct of
prosecution
51. Complaint and
charge
52. Issue of summons or
warrant
53. Notice to attend
court
54. Form and contents of
summons
55. Service of
summons
56. Service when persons
summoned cannot be found
57. Procedure
where service cannot be effected as before
provided
58. Service on company or
corporation
59. Where summons may be
served
60. Proof of
service
61. Power to dispense with
personal attendance of accused
62.
Warrant after issue of summons
63.
Summons disobeyed
64. Form, contents
and duration of warrant of arrest
65.
Court may direct security to be
taken
66. To whom warrants are to be
directed
67. Notification of substance
of warrant
68. Person arrested to be
brought before the Court without
delay
69. Where warrant of arrest may
be executed
70. Irregularities in
warrant
71. Power to take bond for
attendance
72. Arrest for breach of
bond for attendance
73. Power of Court
to order prisoner to be brought before
it
74. Provisions of this part
generally applicable to summonses and
warrants
75. Power to issue search
warrant
76. Execution of search
warrants
77. Persons in charge of
closed places to allow ingress thereto and egress
therefrom
78. Detention of property
seized
79. Provisions applicable to
search warrants
80. Bail in certain
cases
81. Recognizance of
bail
82. Discharge from
custody
83. Deposit instead of
recognizance
84. Power to order
sufficient bail when that first taken is
insufficient
85. Discharge of
sureties
86. Death of
surety
87. Arrest of persons granted
bail
88. Forfeiture of
recognizance
89. Appeal from and
revision of orders
90. Offence to be
specified in charge or information with necessary
particulars
91. Joinder of counts in a
charge or information
92. Joinder of
two or more accused in one charge or
information
93. Rules for the framing
of charges and informations
94.
Persons convicted or acquitted not be tried again for same
offence
95. Person may be tried again
for separate offence
96. Consequences
supervening or not known at time of former
trial
97. Where original Court was not
competent to try subsequent charge
98.
How a previous conviction may be
proved
99. When leave of Cabinet
necessary before prosecution may be
instituted
100. Power to summon
material witnesses and examine persons
present
101. Evidence to be given on
oath or affirmation
102. Refractory
witnesses
103 Compulsory disclosures
not to afford evidence
104. Negative
averments
105. Cases where wife or
husband may be called without the consent of the
accused
106. Competency of accused and
husband or wife as witness in criminal
cases
107. Procedure where accused is
called as witness
108. Right of
reply
109. Inquiry by Court as to
unsoundness of mind of accused
110.
Defence of unsoundness of mind at preliminary
inquiry
111. Defence of unsoundness of
mind on trial
112. Resumption of trial
or inquiry
113. Certificate of medical
officer of hospital as to sanity to be
evidence
114. Procedure where accused
does not understand proceedings
115.
Mode of delivering judgment
116.
Contents of judgment
117. Copy of
judgment, etc., to be given to accused on
application
118.
Costs
119. Order to pay costs
appealable
120. Compensation in case
of frivolous or vexatious charges
121.
Power of Courts to award expenses or compensation out of
fine
122. Payment to innocent person
of money found on accused
123.
Promotion of reconciliation
124.
Preservation or disposal of
property
125. Property stolen to be
restored to owner
126. Stay of
order
127. Restoration of possession
of real property
128: Procedure by
police on seizure of property
129.
Conviction of minor offences included in offence
charged
130. Conviction of
attempt
131. Conviction of killing
unborn child on charge of murder,
etc.
132. Conviction of procuring
abortion on charge of killing unborn
child
133. Conviction of concealment
of birth on charge of murder,
etc.
134. Conviction of careless or
dangerous driving on charge of
manslaughter
135. Conviction of
cognate offence on charge of rape
136.
Conviction of unlawful carnal knowledge on charge of
incest
137. Conviction of cognate
offence on charge of defilement of girl under seventeen years of
age
138. Conviction of cognate offence
on charge of defilement of girl under thirteen years of
age
139. Conviction of cognate offence
on charge of burglary, etc.
140.
Conviction of receiving, retaining or obtaining by a false pretence on charge of
stealing.
141. Conviction of stealing
on charge of obtaining by a false
pretence
142. Conviction of assault
with intent to rob on charge of
robbery
143. Construction of sections
129 to 142 inclusive
144. Persons
charged with jointly receiving property may be convicted on proof that property
was received separately
PART
V
MODE OF TAKING
AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS
145. Evidence to be taken
in presence of accused
146. Proof by
written statement
147. Proof by formal
admission
148. Notice of
alibi
149. Interpretation of evidence
to accused
PART
VI
PROCEDURE IN
TRIALS BEFORE THE DISTRICT COURT
150. Non-attendance of
complainant at hearing
151. Court may
proceed with hearing in absence of accused in certain
cases
152. Attendance of both
parties
153. Withdrawal of
charge
154.
Adjournment
155. Non-attendance of
parties after adjournment
156.
Conviction in absence of accused may be set
aside
157. Commencement of sentence
passed in absence of accused
158.
Certain provisions relating to Supreme Court to apply to District
Court
159. Limitation of time for
summary trials in certain cases
160.
Power to stop summary trial and hold preliminary inquiry in
lieu
161. Committal to Supreme Court
for sentence
PART
VII
COMMITTAL OF
ACCUSED PERSONS TO THE SUPREME COURT FOR TRIAL
162. District Court to
hold preliminary inquiry
163. Charge
to be read over to accused
164.
Depositions
165. Variance between
evidence and charge
166. Written
statements before the District
Court
167.
Adjournment
168. Provisions as to
taking statement or evidence of accused
person
169. Evidence and address in
defence
170. Committal for
trial
171. Discharge of
accused
172. Power to apply to Supreme
Court for committal in certain cases where accused person
discharged
173. Summary
adjudication
174. Accused entitled to
copy of depositions
175. Taking the
depositions of persons dangerously
ill
176. Notice to be
given
177. Transmission of
statements
178. Use of statement in
evidence
179. Transmission of records
to Supreme Court and Director of Public
Prosecutions
180. Filing of an
information
181. Return of depositions
for trial in the District Court
182.
Notice of trial
183. Return of
service
184. Postponement of
trial
185. Information by Director of
Public Prosecutions
186. Form of
information
PART
VIII
PROCEDURE IN
TRIALS BEFORE THE SUPREME COURT
187. Practice of Supreme
Court in its criminal
jurisdiction
188. Trials before
Supreme Court to be by a judge
alone
189. Accused
absent
190. Accused to be called upon
to plead
191. Orders for amendment of
information, separate trial and adjournment of
trial
192. Quashing of
information
193. Procedure in case of
previous convictions
194. Plea of
guilty to other offence
195.
Proceedings after plea of "not
guilty"
196. Power to postpone or
adjourn trial
197. Additional
witnesses for prosecution
198.
Cross-examination of witnesses for the
prosecution
199. Depositions may be
read as evidence in certain cases
200.
Evidence or statement of accused at preliminary
inquiry
201. Close of case for
prosecution
202. The
defence
203. Additional witnesses for
the defence
204. Evidence in
reply
205. Closing addresses where
accused adduces no evidence
206.
Closing addresses where accused adduces
evidence
207. The
judgment
208. Power to reserve
decision on question raised
at
trial
209. Power to reserve decision
on question arising in the course of
trial
210. Objections cured by
verdict
211. Evidence, etc.,
admissible after finding of guilt
212.
Drawing up of conviction, sentence or order.
PART
IX
SUPPLEMENTARY
PROVISIONS
213. Power to issue
directions of the nature of habeas
corpus
214. Power of the Supreme Court
to issue writs
215. Persons before
whom affidavits may be sworn
216.
Copies of proceedings
217.
Forms
218. Expenses of assessors,
witnesses, etc.
PART
X
INTERIM
PROVISIONS AND SAVINGS
219.
Repeal
220. Cessation of application
of certain adopted laws
221. Interim
provisions
222. Savings
--------------------------------
AN ACT
To make provision for the procedure to be followed in criminal causes and matters in the Supreme Court and the District Court.
(Certified: 24th November, 1972)
Enacted by the Parliament of Nauru as follows:
PART I - PRELIMINARY
SHORT
TITLE AND
COMMENCEMENT
1.
This Act maybe cited as the Criminal Procedure Act 1972 and shall come into
force on a date to be notified by the Minister in the
Gazette.
INTERPRETATION
2.
(1) In this Act, unless the context otherwise requires –
"Clerk" means the Clerk of the District Court;
"cognisable offence" has the meaning assigned to it by section 10 of this Act;
"complaint" means an allegation that some person known or unknown has committed, or is guilty of, an offence;
"criminal proceedings" includes a preliminary inquiry;
"Director of Public Prosecutions" means the public officer appointed as such under the provisions of section 45 of this Act;
"imprisonment" includes night imprisonment;
"non-cognisable offence" means an offence which is not a cognisable offence;
"preliminary inquiry" means an inquiry into a criminal charge held by the District Court under Part VII of this Act with a view to the committal of the accused person for trial before the Supreme Court;
"private prosecution" means a prosecution instituted and conducted by any person other than a public prosecutor;
"public prosecutor" includes the Director of Public Prosecutions and every person who is for the time being a public prosecutor by virtue of the provisions of section 48 of this Act;
"Registrar" means the Registrar of the Supreme Court;
"sentence" includes an order following conviction for which provision is made in Part I of the Criminal Code or in Part IV of the Motor Traffic Act 1937-1972;
"summary trial" means a trial held by the District Court under Part VI of this Act.
TRIAL
OF
OFFENCES
3.
Subject to the provisions of any written law relating to children or young
persons, all offences under the Criminal Code or under
any other law shall be
inquired into, tried and otherwise dealt with in accordance with the provisions
of this Act.
PART II – POWERS OF THE COURTS
POWER
TO TRY OFFENCES UNDER THE CRIMINAL
CODE
4.
(1) Subject to the provisions of any written law relating to children or young
persons, any offence under the Criminal Code may be
tried by the Supreme
Court.
(2) Subject to the
provisions of any written law relating to children or young persons and to the
other provisions of this Act, any
offence under the Criminal Code may be tried
by the District Court if it is punishable with imprisonment for not more than
ten
years.
POWER TO
TRY OFFENCES UNDER OTHER
LAWS
5.
(1) Where an offence is created by any written law other than the Criminal Code
and no provision is made for the Court by which that
offence may be tried, it
may, subject to the provisions of any written law relating to children or young
persons, be tried-
(a) by the Supreme Court; and
(b) by the District Court if it is punishable with imprisonment for not more than ten years.
(2)
Where in any applied statute it is provided that an offence shall be tried by a
court other than the Supreme Court or the District
Court, the offence may,
subject to the provisions of any written law relating to children or young
persons, be tried -
(a) by the Supreme Court; and
(b) by the District Court if it is punishable with imprisonment for not more than ten years.
SENTENCES
WHICH THE SUPREME COURT MAY
PASS
6.
The Supreme Court may pass any sentence, and make any order, authorised by law
for which provision is made in the Criminal Code or
in any other written
law.
SENTENCES
WHICH THE DISTRICT COURT MAY
PASS
7.
The District Court may pass any sentence, and make any order, authorised by law
for which provision is made in the Criminal Code
or in any other written
law:
Save that the District Court
may not pass-
(a) sentence of death;
(b) sentence of imprisonment exceeding three years in respect of any one offence;
(c) sentence of a fine exceeding three thousand dollars in respect of any one offence.
COMBINATION
OF
SENTENCES
8.
(1) Subject to the provisions of the Criminal Code and of any other written law,
the Supreme Court and the District Court may pass
any lawful sentence combining
any two or more of the sentences which such Court is authorised by law to
pass.
(2) In determining the
extent of the jurisdiction of the District Court under section 7 of this Act,
any term of imprisonment which
is, or may be imposed in default of payment of a
fine, costs or compensation shall be deemed not to be a sentence of imprisonment
passed in respect of the offence for which the fine was
imposed.
SEPARATE
SENTENCE TO BE PASSED FOR EACH
OFFENCE
9.
(1) Where a person is convicted at one trial of two or more offences the Court
shall pass sentence separately in respect of each
offence.
(2) Where sentences of
imprisonment are passed on any person at one trial for two or more offences, the
sentences shall run consecutively
in such order as the Court which passes them
may direct, unless that Court directs that they shall run
concurrently.
(3) The maximum
aggregate sentences of imprisonment and fine which may be imposed by the
District Court on any one person at one trial
are -
(a) imprisonment for six years; and
(b) fines totalling six thousand dollars.
(4)
For the purpose of ascertaining whether or not there is a right of appeal, the
aggregate of fines imposed on one person at one
trial shall be deemed to be a
single sentence.
PART III - ARREST OF OFFENDERS AND PREVENTION OF OFFENCES
ARREST
WITHOUT
WARRANT
10.
(1) The powers of summary arrest conferred by this section shall apply to
offences for which the sentence is fixed by law or for
which a person may under
or by virtue of any written law be sentenced to imprisonment for a term of five
years or more and to any
other offence specified as a cognisable offence, or as
an offence in respect which the offender may be arrested without warrant,
by
this Act or any other written law, and to attempts to commit any such offences,
and in this Act "cognisable offence" means any
such offence or
attempt.
(2) Any person may arrest
without warrant anyone who is, or whom he, with reasonable cause suspects to be,
in the act of committing
a cognisable
offence.
(3) Where a cognisable
offence has been committed, any person may arrest without warrant anyone who is,
or whom he, with reasonable
cause, suspects to be guilty of the
offence.
(4) Where a police
officer, with reasonable cause, suspects that a cognisable offence has been
committed, he may arrest without warrant
anyone whom he, with reasonable cause,
suspects to be guilty of the
offence.
(5) A police officer may
arrest, without warrant any person who is, or whom he with reasonable cause,
suspects to be, about to commit
a cognisable
offence.
(6) For the purpose of
arresting a person under any power conferred by this section a police officer
may enter, if need be by force,
and search any place where that person is or
where the police officer, with reasonable cause, suspects him to
be.
(7) This section shall not
affect the operation of any enactment restricting the institution of proceedings
for an offence nor prejudice
any power of arrest conferred by law apart from
this
section.
MODE
OF MAKING
ARREST
11.
(1) In making an arrest the person making it 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) A person
may use such force as is reasonable in the circumstances in the prevention of
crime or in effecting, or assisting in,
the lawful arrest of offenders or
suspected offenders or of persons unlawfully at
large.
(3) The last preceding
subsection shall replace the rules of the common law on the question when force
used for a purpose mentioned
in that subsection is justified by that
purpose.
ENTRY
TO ARREST PERSON UNDER
WARRANT
12.
For the purpose of arresting a person under a warrant of arrest, any person to
whom such warrant is addressed may enter, if need
be by force, and search any
place where that person is or where he, with reasonable cause, suspects him to
be.
POWER TO
SPEAK OUT OF HOUSE, ETC., FOR PURPOSE OF
LIBERATION
13.
Any person authorised
to make an arrest may break out of any house
or 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
14.
No person arrested shall be subjected to more restraint than is reasonable to
prevent his
escape.
SEARCH
OF ARRESTED
PERSONS
15.
(1) Where 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 any articles in his possession or
under his control and place in
safe custody all articles found in his possession
or under his control and any article found upon him, except necessary wearing
apparel:
Provided that, whenever
the person arrested can be legally admitted to bail and bail is is [sic]
furnished, such person shall not
be searched unless there are reasonable grounds
for believing that he has about his person any-
(a) stolen articles;
(b) instruments of violence;
(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.
(4) Whenever it is necessary
to cause a woman or girl to be searched, the search shall be made only by
another woman with strict regard
to
decency.
POWER
OF POLICE OFFICER TO DETAIN AND SEARCH PERSONS, VEHICLES, VESSELS AND AIRCRAFT
IN CERTAIN
CIRCUMSTANCES
16.
(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 has
been, or 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 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 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 or aircraft
any property stolen or unlawfully obtained, enter
without warrant, and with or without assistants, on board such vessel or
aircraft
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 or aircraft 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 any person in whose possession it 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 aircraft or who has
landed with the property so conveyed away or found in
his
possession.
(3) Any police officer
may, if he has reason to suspect that an offence has been committed, seize any
articles which may be in a public
place and which may furnish evidence in regard
to the commission of that
offence:
Provided that no articles
may be seized under the provisions of this subsection unless there is a
possibility of such articles being
removed or dealt with in such a way as to
prevent their being available as
evidence.
(4) Any person detained
under this section shall be dealt with under the provisions of section 21 of
this Act.
POWER
TO SEIZE OFFENSIVE
WEAPONS
17.
Notwithstanding the provisions of section 15 of this Act, the police 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 magistrate
or police officer before whom the police officer or
other person making the arrest is required by law to bring or send the person
arrested.
REFUSAL
TO GIVE NAME AND
RESIDENCE
18.
(1) Where any person who in the presence of a police officer has committee or
has been accused of committing a non-cognisable offence
refuses on the demand of
such police officer to give his name and residence, or gives a name and
residence which such police officer,
with reasonable cause, suspects to be
false, he may be arrested by that police officer, or any other police officer,
in order that
his name and residence may be ascertained or
verified.
(2) When the true name
and residence of a person arrested under the provisions of the last preceding
subsection have been ascertained
he shall be released on his executing a
recognizance, with or without sureties, for a reasonable amount to attend before
the District
Court at a time and place to be named in the
recognizance:
Provided that if
such person is not normally resident in Nauru the recognizance shall be secured
by a surety or sureties normally
resident in Nauru or by the deposit of a sum of
money sufficient to satisfy any penalty which may be payable upon forfeiture of
the
recognizance.
(3) Where the
true name and residence of any person arrested under the provisions of this
section have not been ascertained within
twenty-four hours from the time of
arrest, or if he fails to execute the recognizance or, if so required, to
furnish sufficient sureties
or
to deposit the proper sum of money, he shall
forthwith be brought before a
magistrate.
DISPOSAL
OF PERSON ARRESTED BY A POLICE
OFFICER
19.
A police officer making an arrest without a warrant shall, without unnecessary
delay and subject to the provisions herein contained
as to bail, bring or send
the person arrested before a magistrate or before a police officer of or above
the rank of
sergeant.
DISPOSAL
OF PERSON ARRESTED
BY PRIVATE
PERSON
20.
(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,
and in the absence of police officer shall take such person to the police
station.
(2) If there is reason to
believe that such person has committed any cognisable offence, 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 police officer, with reasonable cause,
suspects to be false,
he shall be dealt with under the provisions of section 18
of this Act. 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
21.
Where any person has been taken into custody without a warrant for an offence
other than murder or treason, the magistrate or police
officer of or above the
rank of sergeant to whom such person shall have been brought may in any case,
and shall if it does not appear
practicable for such person to be brought before
the District Court within twenty-four hours after he has been so taken into
custody,
inquire into the case and, unless the offence appears to the magistrate
or police officer to be of a serious nature, release the
person on his entering
into a recognizance, with or without sureties, for a reasonable amount to attend
before the District Court
at a time and place to be named in the recognizance,
but, where he has been taken before a police officer and not so released by
that
police officer, he shall be taken before a magistrate within twenty-four hours
after his arrest and the magistrate shall inquire
into the case and decide
whether or not he should be so released and, where any person is detained in
custody he shall be brought
before the District Court as soon as
practicable:
Provided that a
police officer of or above the rank of sergeant may release entirely a person
arrested on suspicion that he has committed
any offence where, after due police
inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed
with the
charge.
POLICE
OFFICER TO REPORT CERTAIN
ARRESTS
22.
Where any person is released under the proviso to section 21, the police officer
who authorised such release shall report the same
to the Director of Police as
soon as it is reasonably possible to do
so.
OFFENCE
COMMITTED IN MAGISTRATE'S
PRESENCE
23.
Where any cognisable offence is committed in the presence of a magistrate he may
himself arrest, or authorise any person to arrest,
the offender and may
thereupon subject to the provisions of this Act as to bail, commit the offender
to
custody.
ARREST
BY
MAGISTRATE
24.
Any magistrate may at any time arrest, or authorise the arrest in his presence
of, any person for whose arrest he is competent at
the time and in the
circumstances issue a
warrant.
RECAPTURE
OF PERSON
ESCAPING
25.
(1) Where 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.
(2) The provisions of
sections 10, 11, 12 and 13 of this Act shall apply to arrests under this
section.
ASSISTANCE
TO MAGISTRATE OR POLICE
OFFICER
26.
Every person is bound to assist a magistrate or police officer reasonably
demanding his aid-
(a) in the arrest or preventing the escape of any other person whom such magistrate or police officer is authorised to arrest; and
(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 property of the Republic, the Council or the Nauru Phosphate Corporation.
SECURITY
FOR KEEPING THE
PEACE
27.
Where a magistrate 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 of the [sic] peace, the magistrate may, in the manner hereinafter
provided, require such person
to show cause to the District Court why he should
not be ordered to enter into a recognizance, with or without sureties, for a
reasonable
amount for keeping the peace for such period not exceeding one year,
as the District Court thinks
fit.
ORDER TO
BE
MADE
28.
Where a magistrate acting under section 27 of this Act deems it necessary to
require any person to show cause thereunder, he shall
make an order in writing
setting forth -
(a) the substance of the information received;
(b) the amount of the recognizance; and
(c) the number, character and class of sureties, if any, required.
PROCEDURE
IN RESPECT OF PERSON PRESENT IN
COURT
29.
If the person in respect of whom any order is made under section 28 of this Act
is present in court, the order shall be read over
and explained to
him.
SUMMONS OR
WARRANT IN CASE OF PERSON NOT PRESENT IN
COURT
30.
If the person in respect of whom any order is made under section 28 of this Act
is not present in court, the magistrate shall issue
a summons requiring him to
attend or, where such person is in custody, a warrant directing the officer in
whose custody he is to
bring him before the District
Court:
Provided that, whenever it
appears to the magistrate, upon the report of a police office or upon other
information, the substance
of which report or information shall be recorded in
writing by the magistrate, 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 that person, the magistrate
may at any
time issue a warrant for his
arrest.
COPY OF
ORDER UNDER SECTION 28 TO ACCOMPANY SUMMONS OR
WARRANT
31.
Every summons or warrant issued under the last preceding section shall be
accompanied [sic] by a copy of the order made under section
28 of this Act, and
such copy shall be delivered by the officer serving or executing such summons or
warrant to the person served
with or arrested under
it.
POWER TO
DISPENSE WITH PERSONAL
ATTENDANCE
32.
The District 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 recognizance for keeping the peace, and permit him to appear by
a barrister and solicitor
or a
pleader.
INQUIRY
AS TO TRUTH OF
INFORMATION
33.
(1) Where an order under section 28 of this Act has been read or explained under
section 29 of this Act to a person present in court,
or where any person attends
or is brought before the District Court in compliance with or in execution of a
summons or warrant issued
under section 30 of this Act, that 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) The inquiry shall
be made, as nearly as may be practicable, in the manner prescribed by this Act
for conducting trials and recording
evidence in trials before the District
Court.
(3) Where two 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 Court thinks
just.
ORDER TO
GIVE
SECURITY
34.
(1) If upon an inquiry under section 33 of this Act 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
recognizance, with or without sureties,
the District 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, that specified in the order made under section 28 of this Act; and
(b) the amount of every recognizance shall be fixed with due regard to the circumstances at the case and shall not be excessive.
(2)
Any person ordered .to give security for good behaviour under this section may
appeal to the Supreme Court, and the provisions
of Part II of the Appeals Act
1972 shall apply mutatis mutandis to every such
appeal.
DISCHARGE
OF PERSON INFORMED
AGAINST
35.
If on an inquiry under section 33 of this Act it is not proved that it if
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
recognizance, the District 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
36.
(1) Where any person in respect of whom an order requiring security is made
under section 28 or section 34 of this Act 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 Court, for sufficient
reason, fixes a later date.
(3)
The recognizance to be entered into shall bind the person 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, shall be a
breach of the
recognizance.
POWER
TO REJECT
SURETIES
37.
The District 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 Court,
such surety is an unfit
person.
PROCEDURE
ON FAILURE OF PERSON TO GIVE
SECURITY
38.
(1) If any person ordered to give security under the provisions of section 34 of
this Act 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 the next
following subsection, 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 District
Court.
(2) Where a person has been
ordered by the District Court to give security for a period exceeding one year,
the District Court shall,
if he does not give that security, issue a warrant
directing him to be detained in prison pending the order of the Supreme Court,
and the proceedings shall be laid as soon as conveniently may be before that
Court.
(3) The Supreme Court,
after examining the record of the proceedings in the District Court and
requiring from the District 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 two
years.
(5) If the security is
tendered to the officer in charge of the prison, he shall forthwith refer the
matter to the Court which made the order and shall
await the order of that
Court.
POWER TO
RELEASE PERSONS IMPRISONED FOR FAILURE TO GIVE
SECURITY
39.
Where the resident magistrate is of opinion that any person imprisoned for
failing to give security may be released without hazard
to the community, he
shall make an immediate report of the case for the order of a judge who may, if
he thinks fit, order such person
to be
discharged
POWER
OF SUPREME COURT TO CANCEL
RECOGNIZANCE
40.
The Supreme Court or a judge may at any time, for sufficient reasons to be
recorded in writing, cancel any recognizance for keeping
the peace or for good
behaviour executed under any of the preceding sections by order of the District
Court.
DISCHARGE
OF
SURETIES
41.
(1) Any surety to any recognizance entered into under any of the preceding
sections of this Act may at any time apply to the District
Court to cancel the
recognizance.
(2) On such
application being made the District Court shall issue a summons or warrant, as
it thinks fit, requiring the person for
whom that surety is bound to attend or
to be brought before it.
(3) Where
that person attends or is brought before the District Court, the Court shall
cancel the recognizance and shall order him
to give, for the unexpired portion
of the term of the recognizance, fresh security of the same description as the
original security.
Every such order shall for the purposes of sections 36, 37,
38 and 39 of this Act be deemed to be an order made under section 34
of this
Act.
POWER TO
ARREST AND PRODUCE BEFORE COURT PERSON ATTEMPTING TO KILL
HIMSELF
42.
Any police officer may, when he has reason to believe that any person has
recently attempted, is attempting or is about to attempt
to kill himself, arrest
such person and produce him before the District Court, which may make an order
in respect of such person,
requiring him to be under the supervision of a
probation officer for such period as the Court may specify in the
order:
Provided that nothing in this
section shall preclude any such person being dealt with under the provisions of
the Mentally-disordered Persons Ordinance 1963-1967.
PART IV - PROVISIONS RELATING TO CRIMINAL PROCEEDINGS
GENERAL
AUTHORITY OF DISTRICT
COURT
43.
The District Court has authority to cause to be brought before it any person who
is in Nauru and is charged with an offence committed
within, or which may be
inquired into or tried within, Nauru and to deal with him according to its
jurisdiction.
COURT
TO BE
OPEN
44.
The place in which any 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 it can conveniently contain
them:
Provided that the presiding
judge or magistrate may, if he thinks fit, order before or 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.
APPOINTMENT
OF DIRECTOR OF PUBLIC
PROSECUTIONS
45.
The President shall appoint a public officer to be the Director of Public
Prosecutions and such Director of Public Prosecutions shall
be responsible for
the representation of the Republic in criminal proceedings before the Courts. He
shall be ex
officio a public
prosecutor.
POWER
OF DIRECTOR OF PUBLIC PROSECUTIONS TO ENTER NOLLE
PROSEQUI
46.
(1) In any criminal cause or matter and at stage thereof before verdict or
judgment, including the period between the committal of
an accused person for
trial by the Supreme Court and the filing of an information in that Court, the
Director of Public Prosecutions
may enter a nolle prosequi, either by stating in
court or by informing the Court in writing that the Republic 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
recognizances 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) Where the accused
is not before the Court when a nolle prosequi is entered-
(a) if he is detained in the prison, the Registrar or the Clerk, as the case may be, shall forthwith send to the Superintendent of the prison a notice in writing of its entry and the Superintendent shall, unless the accused is lawfully detained on another warrant, release him from custody forthwith; and
(b) if he is not detained in the prison, the Registrar or the Clerk, as the case may be, shall send a notice in writing of its entry to him and to the sureties, if any, of any recognizance into which he may have been required to enter.
DELEGATION
OF POWERS BY DIRECTOR OF PUBLIC
PROSECUTIONS
47.
The Director of Public Prosecutions may by an instrument in writing authorise
that all or any of the powers and rights vested in,
or duties imposed upon, him
by sections 46, 180, 181, 182 and 185 of this Act may be exercised on his behalf
by a public officer
of the Department of Justice, and the exercise of those
powers and rights and the performance of those duties by that officer in
the
name of the Director shall then operate as if they had been exercised or
performed by the Director of Public
Prosecutions:
Provided that the
Director of Public Prosecutions may in writing revoke any authorisation made by
him under this section;
And
provided further that the Director of Public Prosecutions shall not cease to be
able to exercise any of his powers by reason only
of his having made an
authorisation in respect of them under this
section.
PUBLIC
PROSECUTORS AND PROSECUTION BY POLICE
OFFICERS
48.
(1) The Director of Public Prosecutions may appoint in writing any public
officer of the Department of Justice who is qualified to
be admitted to practice
as a barrister and solicitor to be a public prosecutor generally or for any
specified case.
(2) The Director
of Public Prosecutions may appoint in writing any barrister and solicitor or
pleader to be a public prosecutor for
any specified
case.
(3) Any police officer may
appear and conduct any prosecution in the District Court which has been
instituted by himself or any other
police officer or public
officer.
(4) Every public
prosecutor and every police officer conducting a prosecution shall be subject to
the express directions of the Director
of Public
Prosecutions.
POWERS
OF PUBLIC
PROSECUTORS
49.
A public prosecutor may appear and plead before any Court in which any case of
which he has charge is under inquiry, trial or appeal;
and, if any private
person instructs a barrister and solicitor or a pleader to prosecute in any such
case, the public prosecutor
may conduct the prosecution, and the barrister and
solicitor or pleader so instructed shall act therein under his
directions.
CONDUCT
OF
PROSECUTION
50.
Any person, other than a public prosecutor, conducting the prosecution in any
criminal proceedings may do so personally or by a barrister
and solicitor or
pleader.
COMPLAINT
AND
CHARGE
51.
(1) Proceedings may be instituted either, by the making of a complaint to a
magistrate or by the bringing before the District Court
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.
(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, it shall be signed by the complainant and
the magistrate:
Provided that,
where proceedings are instituted by a police officer or any other public officer
acting in the course of his duty,
a formal charge duly signed by that officer
may be presented to the magistrate and shall, for the purposes of this Act, be
deemed
to be a complaint.
(4) The
magistrate, upon receiving any such complaint, shall, unless the complaint has
been laid in the form of a formal charge under
the last preceding sub-section,
draw up, or cause to be drawn up, and sign a formal charge containing a
statement of the offence
with which the accused is
charged.
(5) Where an accused
person who has been arrested without a warrant is brought before the District
Court, a formal charge, containing
a statement of the offence with which the
accused is charged, shall be signed and presented by a police
officer.
ISSUE
OF SUMMONS OR
WARRANT
52.
(1) Where a magistrate has signed a charge in accordance with the provisions of
section 51 and the accused person is not in lawful
custody, the magistrate may
in his discretion, but subject to the provisions of section 62 of this Act,
issue either a summons or
a warrant to: compel the attendance of the accused
person before the District Court for that Court to inquire into or try the
offence
alleged to have been
committed:
Provided that a warrant
shall not be issued in the first instance unless the complaint has been made, or
the charge presented, upon
oath either by the complainant or by a
witness.
(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
under this section may be issued on a Sunday or public
holiday.
NOTICE
TO ATTEND
COURT
53.
(1) Notwithstanding the other requirements of this Act, it shall be lawful for
any police officer to institute proceedings by, and
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 that person to attend
court in answer to the charge stated therein at such place and on such
date and
time, not being less than two days from the date of such service, as shown on
such notice or to attend by a barrister and
solicitor or pleader or to enter a
written plea of guilty:
Provided
that such notice shall be served not later than fourteen days after the date
upon which the offence is alleged to have been
committed.
(2) A notice served in
accordance with the provisions of the preceding subsection shall for all
purposes be regarded as a summons
issued under the provisions of this Act and,
in the event of a person upon whom such a notice has been served failing to
comply with
the requirements of the notice, a warrant for the arrest of that
person may, subject to the provisions of section 62 of this Act,
be issued
notwithstanding that no complaint has been made on
oath.
(3) A copy of every notice
issued under this section shall be signed by the police officer issuing it and
shall be lodged with the
Clerk of the District Court before the time stated
therein for attendance and shall be deemed to be a charge presented by that
police
officer.
(4) The provisions
of section 61 shall apply mutatis mutandis to any notice issued under this
section.
(5) This section shall
apply to all offences punishable only by a fine or by imprisonment, with or
without a fine, for a term not
exceeding three
months.
(6) Nothing in this
section shall be deemed to prevent the institution of proceedings in respect of
such offences under the other
provisions of this
Act.
FORM AND
CONTENTS OF SUMMONS
54.
(1) Every summons issued by a magistrate under this Act shall be in writing, in
duplicate, signed by the
magistrate.
(2) Every summons
shall be directed to the person summoned and shall require him to attend at a
time and place to be therein appointed
before the District Court. It shall state
shortly the offence with which the person against whom it is issued is
charged.
SERVICE
OF
SUMMONS
55.
Every summons shall, if practicable, be served personally on the person summoned
by delivering or tendering to him the duplicate
of the
summons.
SERVICE
WHEN PERSON SUMMONED CANNOT BE
FOUND
56.
Where the person summoned cannot by the exercise of due diligence be found, the
summons may be served by leaving the duplicate of
it for him with an adult
person normally residing in the same dwelling-house as the person summoned or
with his
employer.
PROCEDURE
WHERE SERVICE CANNOT BE EFFECTED AS BEFORE
PROVIDED
57.
Where service in the manner provided by sections 55 and 56 cannot by the
exercise of due diligence be effected, the serving officer
shall affix the
duplicate of the summons 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 OR
CORPORATION
58.
Service of a summons on an incorporated company or a corporation or other body
corporate may be effected by serving the duplicate
of it on the secretary, local
manager or other principal officer of the company, corporation or body corporate
or in such other manner
as the resident magistrate may
direct.
WHERE
SUMMONS MAY BE
SERVED
59.
Subject to any written law relating to the privileges and immunities of
Parliament and its members, a summons may be served at any
place within
Nauru.
PROOF OF
SERVICE
60.
An affidavit purporting to be made before a magistrate or Commissioner for for
[sic] Oaths that a 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; the
summons shall be annexed to the affidavit or the
affidavit may be endorsed on the same paper as the
summons.
POWER
TO DISPENSE WITH PERSONAL ATTENDANCE OF
ACCUSED
61.
(1) Where a magistrate issues a summons in respect of any offence the maximum
sentence for which is imprisonment for a term not exceeding
three years, with or
without a fine, and whether or not any disqualification may be ordered or may
result from the accused being
convicted, he may if he sees reason to do so, and
shall where no sentence of imprisonment for a term exceeding three months may be
imposed for the offence with which the accused is charged or, where he is
charged with more offences than one, for any of those offences,
whether or not
any disqualification may be ordered, direct that the personal attendance of the
accused will be dispensed with provided
that he pleads guilty in writing or
attends by a barrister and solicitor or pleader. Every such summons shall
include a notice stating
that any fine which may be imposed by the Court must be
paid within eight days of the date appointed in the summons for attendance
thereon and a warning that he will not receive notification from the Court as to
any such fine but that it is his duty to make inquiry
from the Court and that,
if he fails to pay the fine within that time or to apply within that time to the
Court for an extension
of that time, he will be liable to be committed to
prison.
(2) Where a direction that
the personal attendance of the accused will be dispensed with has been given in
a summons under this section,
the District Court may in its discretion, at any
subsequent stage of the proceedings, direct the personal attendance of the
accused
and, if necessary but subject to the provisions of section 62 of this
Act, enforce his attendance in the manner hereinafter in this
Act provided; but
no warrant shall be issued unless a complaint or charge has been made upon oath
or sworn evidence has been given
in proof of the offence
charged.
(3) Where the District
Court convicts an accused person and it is proved to the satisfaction of the
Court that not less than seven
days before that conviction a notice was served
on him in the prescribed form and manner specifying any alleged previous
conviction
of him for an offence proposed to be brought to the notice of the
Court in the event of his conviction of the offence charged, and
the accused is
by reason of the provisions of this section or section 53 not present in person
before the Court, the Court may take
account of any such previous conviction so
specified as if the accused had appeared and admitted
it.
(4) Where the District Court
imposes a fine on an accused person who is not present in person before the
Court by reason of the provisions
of this section or section 53, the Court may
forthwith impose a sentence of imprisonment, not exceeding the term authorised
by section
19A of the Criminal Code, to be served by the accused person in
default of payment of the fine within eight days or such further
time as may be
allowed by the Court; and, unless it has granted an extension of time for
payment, the Court may, upon such default,
forthwith issue a warrant for his
arrest and committal to prison to serve that
sentence.
(5) Where the District
Court is of the opinion that it would be just to order disqualification under
the provisions of the Motor Traffic
Act 1937-1972 in respect of an accused
person who is not present in person before the Court by reason of the provisions
of this section
or section 53, it shall order a summons to be served upon him to
show cause why such disqualification should not be imposed and,
if the accused
person does not attend upon the return of the summons or fails to show good
cause why the disqualification should
not be imposed, the Court may order
disqualification.
WARRANT
AFTER ISSUE OF
SUMMONS
62.
(1) Notwithstanding the issue of a summons, a warrant for the arrest of the
accused may, subject to the provisions of the next following
subsection, be
issued at any time before or after the time appointed in the summons for his
appearance; but no such warrant shall
be issued before the time appointed in the
summons for his appearance unless the complaint has been made or the charge
prosecuted
upon oath, or sworn evidence has been given in proof of the
offence.
(2) A warrant for the
arrest of any person shall not be issued under this section, section 52, section
53 or section 61 of this Act
unless the offence to which the warrant relates is
punishable with imprisonment otherwise than only in default of payment of a
fine.
SUMMONS
DISOBEYED
63.
If an accused person, after proper service of a summons, does not attend at the
time and place appointed in and by the summons, and
his personal attendance has
not been dispensed with under section 61 of this Act, the District Court may
issue a warrant to arrest
him and cause him to be brought before
it.
FORM,
CONTENTS AND DURATION OF WARRANT OF
ARREST
64.
(1) Every warrant of arrest issued under this Part of this Act shall be signed
by the magistrate issuing it and bear the seal of
the District
Court.
(2) Every such warrant
shall state shortly the offence with which the person against who it is issued
is charged and shall name or
otherwise describe him; and it shall order the
person or persons to whom it is directed to arrest him and bring him before the
District
Court 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 District
Court.
COURT
MAY DIRECT SECURITY TO BE
TAKEN
65.
(1) A magistrate, when issuing a warrant for the arrest of any person in respect
of any offence other than murder or treason, may
in his discretion direct by
endorsement on the warrant that, if that 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 person to whom the warrant is
directed
shall take such security and shall release that person from
custody.
(2) An endorsement under
the preceding subsection 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 District Court.
(3)
Wherever security is taken under this section, the person to whom the warrant is
directed shall forward the bond to the District
Court.
TO WHOM
WARRANTS ARE TO BE
DIRECTED
66.
(1) A warrant of arrest shall normally be directed generally to all police
officers; but the District Court 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
it.
(2) Where a 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
67.
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
68.
A person arrested under a warrant of arrest shall, subject to the provisions of
section 65 of this Act, be brought without unnecessary
delay before the District
Court.
WHERE
WARRANT OF ARREST MAY BE
EXECUTED
69.
Subject to any written law relating to the privileges and immunities of
Parliament and its members, a warrant of arrest may be executed
at any place in
Nauru.
IRREGULARITIES
IN
WARRANT
70.
Any irregularity
or defect in the substance or form of a
warrant and any variance between it and the written complaint or charge or
between either and
the evidence produced on the part of the prosecution at any
preliminary 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, the
Court may, at the request of the accused, adjourn the hearing of the case to
some future date and in the
meantime remand him to prison or admit him to
bail.
POWER TO
TAKE BOND FOR
ATTENDANCE
71.
Where any person for whose attendance a magistrate is empowered to issue a
summons is present in the District Court, the Court may
require that person to
execute a bond, with or without sureties, for his attendance in that
Court.
ARREST
FOR BREACH OF BOND FOR
ATTENDANCE
72.
Where any person who is bound by any bond taken under this Act to attend before
the District Court or who has made a deposit of money
in lieu of executing such
a bond does not so attend, the Court may issue a warrant directing that he be
arrested and brought before
it.
POWER OF
COURT TO ORDER PRISONER TO BE BROUGHT BEFORE
IT
73.
(1) Where any person for whose attendance or arrest a magistrate is empowered to
issue a summons or warrant is confined in the prison,
a magistrate may issue an
order to the Superintendent of the prison requiring him to bring that person in
proper custody before the
District Court at a time to be named in the order and,
where that person is committed for trial to the Supreme Court, the Registrar
may
issue an order similarly for him to be brought before the Supreme
Court.
(2) The Superintendent of
the prison shall, on receipt of an order made under this section, act in
accordance therewith and shall
provide for the safe custody of the prisoner
during his absence from the prison for that
purpose.
PROVISIONS
OF THIS PART GENERALLY APPLICABLE TO SUMMONSES AND
WARRANTS
74.
The provisions contained in this Part relating to the issue, service and
execution of summonses and warrants shall, so far as they
may be applicable,
apply to the issue, service and execution of every summons and every warrant of
arrest issued under this
Act.
POWER TO
ISSUE SEARCH
WARRANT
75.
Where it is proved on oath to a magistrate that in fact or according to
reasonable suspicion anything upon, by or in respect of which
an offence has
been committed, or anything which is necessary to the conduct of an
investigation into any offence, is in any building,
ship, aircraft, vehicle,
box, receptable [sic] or place, the magistrate may issue a search warrant
authorising a police officer or
other person therein named to search the
building, ship, aircraft, vehicle, box, receptacle or place, which shall be
named or described
in the warrant, for any such thing and, if anything searched
for be found, or any other thing which there is reasonable cause to
suspect to
have been stolen or unlawfully obtained be found, to seize it and bring it
before the District Court to be dealt with
according to
law.
EXECUTION
OF SEARCH
WARRANTS
76.
(1) A search warrant may be issued on any day, including a Sunday or a public
holiday, and may be executed on any day, including
a Sunday or a public holiday,
between the hours of sunrise and sunset, but the magistrate may by the warrant,
in his discretion,
authorise the police officer or other person to whom it is
addressed to execute it at any
hour.
(2) As soon as practicable
after the execution of a search warrant, the warrant shall be returned to the
District Court endorsed with
details of its execution; the person upon whose
application the warrant was issued shall be responsible for its proper
return.
PERSONS
IN CHARGE OF CLOSED PLACES
TO ALLOW INGRESS THERETO
AND EGRESS
THEREFROM
77.
(1) Where any building or other place liable to search in execution of a search
warrant is closed, any person residing in or being
in charge of that building or
place shall, on demand of the police officer or other person executing the
warrant and on production
of the warrant, allow him free ingress thereto and
egress therefrom and afford all reasonable facilities for a search
therein.
(2) If ingress to or
egress from any building or other place liable to search in execution of a
search warrant is not allowed in accordance
with the last preceding subsection,
the police officer or other person executing the warrant may proceed in the
manner authorised
by sections 12 and 13 of this
Act.
(3) Where any person in or
about any building or place liable to search in execution of a search warrant is
reasonably suspected of
having any article for which search is authorised
concealed about his person, that person may be searched; if that person is a
woman
or girl, the provisions of subsection (4) of section 15 of this Act shall
be
observed.
DETENTION
OF PROPERTY
SEIZED
78.
(1) Where an thing is seized and brought before the District Court under the
provisions of section 76 of this Act, it may be detained
until the conclusion of
the case or the inquiry, reasonable care being taken for its
preservation.
(2) If any appeal is
taken, or if any person is committed for trial, the District Court may order
that anything seized and brought
before it under the provisions of section 76
shall be further detained for the purpose of the appeal or the
trial.
(3) If no appeal is taken,
or if no person is committed for trial, the District Court shall direct that
anything seized and brought
before it under the provisions of section 76 shall
be restored to the person from whom it was taken, unless the Court is authorised
or required by law to dispose of it otherwise or that person consents to its
being disposed of
otherwise.
PROVISIONS
APPLICABLE TO SEARCH
WARRANTS
79.
Where applicable the provisions of sections 64(1) and (3), 66 and 69 of this Act
shall apply to all search warrants issued under
section 75 of this
Act.
BAIL IN
CERTAIN
CASES
80.
(1) Subject to the provisions of section 21 of this Act, where any person, other
than a person accused of murder or treason, is arrested
or detained without
warrant by a police officer or attends or is brought before the District Court
and is prepared at any time while
in the custody of the police officer or at any
stage of the proceedings before the Court to give bail, he may in the discretion
of
the police officer or the Court be admitted to bail with or without a surety
or sureties.
(2) The amount of
bail shall be fixed with due regard to the circumstances of the case and shall
not be excessive.
(3)
Notwithstanding anything contained in subsection (1) of this section, a judge of
the Supreme Court may in any case direct that
any person be admitted to bail
with or without sureties or that the bail required by the District Court or a
police officer be reduced
or any requirement as to sureties be
varied.
RECOGNIZANCE
OF
BAIL
81.
Before any person is released on bail, the District Court or the police officer,
as the case may be, shall take the recognizance
of that person, and of his
surety or sureties, where such is or are required, conditioned for his
attendance at the time and place
mentioned in the recognizance and for his
continuing so to attend until otherwise directed by the Court or police officer,
as the
case may
be.
DISCHARGE
FROM
CUSTODY
82.
(1) As soon as the recognizance, with or without sureties as the case may be,
has been entered into, a person admitted to bail shall
be released and where he
is in prison the Court shall issue an order of release to the Superintendent of
the prison and the Superintendent
on receipt of the order shall release
him.
(2) Nothing in this section
shall be deem to require the release of any person liable to be detained for
some matter other than that
in respect of which the recognizance was entered
into.
DEPOSIT
INSTEAD OF
RECOGNIZANCE
83.
Where any person may be required by the District Court or any police officer to
enter into a recognizance, such Court or officer
may, except in the case of a
recognizance for good behaviour, permit him to deposit as security for his
attendance before a Court
at a time and place specified by the Court or officer
a sum of money to such amount as the Court or officer may fix in lieu of
executing
such a
recognizance.
POWER
TO ORDER SUFFICIENT BAIL WHEN THAT FIRST TAKEN IS
INSUFFICIENT
84.
If, through mistake, fraud or otherwise, insufficient or unfit sureties have
been accepted, or if they afterwards become insufficient
or unfit, the District
Court may issue a summons or a warrant of arrest, as it thinks fit, directing
that the person released on
bail come or be brought before it and may order him
to find sufficient and fit sureties, and if he fails to do so may commit him
to
prison.
DISCHARGE
OF
SURETIES
85.
(1) All or any of the sureties for the attendance of a person released on bail
may at any time apply to the District Court to discharge
the recognizance either
wholly or so far as it relates to the applicant or
applicants.
(2) On such
application being made the District Court shall issue a summons or a warrant of
arrest, as it thinks fit, directing that
the person so released attend or be
brought before it.
(3) On the
attendance of a person pursuant to a summons or warrant issued under this
section, or on his voluntary surrender, the Court
shall direct the recognizance
to be discharged either wholly or so far as it relates to the applicant or
applicants, and shall call
upon the person to find other sufficient sureties and
if he fails to do so may commit him to
prison.
DEATH
OF
SURETY
86.
Where a surety to a recognizance dies before the recognizance is forfeited, his
estate shall be discharged from all liability in
respect of the recognizance but
the party who gave the recognizance may be required to find a new
surety.
ARREST
OF PERSONS GRANTED
BAIL
87.
(1) A police officer may arrest without warrant any person who has been admitted
to bail-
(a) if the officer has reasonable grounds for believing that that person is likely to break the condition that he will attend at the time and place required or any other condition of which he was admitted to bail, or has reasonable cause to suspect that that person is breaking or has broken any such other condition; or
(b) on being notified in writing by any surety for that person that the surety believes that that person is likely to break the first-mentioned condition and for that reason the surety wishes to be relieved of his obligations as a surety.
(2)
A person arrested under the last preceding subsection -
(a) shall, except where he was so arrested within the period of twenty-four hours immediately preceding an occasion on which he is required by virtue of a condition of his bail to attend before the District Court, be brought before that Court as soon as practicable and in any event within twenty-four hours after his arrest; and
(b) in the said excepted case shall be brought before the Court as aforesaid.
(3)
Where a person is brought before the District Court under the last preceding
subsection, the Court may, if of the opinion that
that person has broken or is
likely to break any condition on which he was admitted to bail, commit him to
prison or release him
on his original recognizance or on a new recognizance,
with or without sureties; and, if not of that opinion, it shall release him
on
his original
recognizance.
FORFEITURE
OF
RECOGNIZANCE
88.
(1) Where the District Court has taken a recognizance under this Act, or where a
recognizance has been taken for attendance before
any Court, and it is proved to
the satisfaction of that Court that the recognizance has been forfeited, the
Court shall record the
grounds of such proof and may call upon any person bound
by the recognizance to pay the penalty thereof or to show cause why it should
not be paid.
(2) If sufficient
cause is not shown, the Court shall order the payment of the penalty or, at its
discretion, may remit any portion
thereof and order payment in part
only.
(3) A penalty, or portion
thereof, ordered to be paid under the provisions of the last preceding
subsection shall, for the purposes
of the enforcement of payment and recovery
thereof, including the giving of time for payment, take effect as if it were a
fine, and
the provisions of the Criminal Code relating to fines shall
accordingly apply to any such penalty, or portion thereof, so ordered
to be
paid.
(4) Where any person who has
furnished security is convicted of an offence the commission of which
constitutes a breach of the conditions
of his recognizance, a certified copy of
the judgment of the Court by which he was convicted of that offence may be used
as evidence
in proceedings under this section against his surety or sureties
and, if such a certified copy is so used, the Court shall presume
that that
offence was committed by him unless the contrary is
proved.
(5) Where a sum of money
has been deposited in lieu of executing are cognizance conditional for the
attendance of a person before
a Court, that Court, if the sum of money appears
to the Court to be forfeited, may make an order
accordingly:
Provided that the
Court, upon application made within a period of fourteen days from the making of
such an order by or on behalf of
the person who has deposited the sum of money,
may in its discretion cancel or mitigate the
forfeiture.
APPEAL
FROM AND REVISION OF
ORDERS
89.
Any orders made under the last preceding section by the District Court shall be
appealable to, and may be revised by, the Supreme
Court under the Appeals Act
1972.
OFFENCE
TO BE SPECIFIED IN CHARGE OR INFORMATION WITH NECESSARY
PARTICULARS
90.
Every charge or information shall contain, and shall be sufficient if it
contains, a statement of the specific offence or offences
with which the accused
person is charged, together with such particulars as may be necessary for giving
reasonable notice of the
nature of the offence
charged.
JOINDER
OF COUNTS IN CHARGE OR
INFORMATION
91.
(1) Any offences may be charged together in the same charge or information if
the offences charged are founded on the same facts
or form, or are part of, a
series of offences of the same or a similar
character.
(2) Where more than one
offence is charged in a charge or information, a description of each offence so
charged shall be set out in
a separate paragraph of the charge or information
called a count.
(3) Where, before
trial or at any stage of a trial, the Court is of opinion that an accused may be
embarrassed in his defence, by
reason of being charged with more than one
offence in the same charge or information, or that for any other reason it is
desirable
to direct that the person be tried separately for any one or more
offences charged in a charger information, the Court may order
a separate trial
of any count or counts of that charge or
information.
JOINDER
OF TWO OR MORE ACCUSED IN ONE CHARGE OR
INFORMATION
92.
(1) The following persons may be joined in one charge or information and may be
tried together, namely
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;
(c) persons accused of more offences than one of the same kind, that is to say, offences punishable with the same amount of punishment under the same section of the Criminal Code or of any other written law, committed by them jointly within a period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of any offence under Chapters XXXVI to XLIV, inclusive, of the Criminal Code, and persons accused of receiving or retaining property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment or of attempting to commit either of such offences.
(2)
Where, before trial or at any stage of a trial, the Court is of opinion that the
interests of justice require that one or more
of several accused who are
included in the one charge or information be tried separately from the others,
it may so order and separate
trials shall thereupon be held as
ordered.
RULES
FOR THE FRAMING OF CHARGES AND
INFORMATIONS
93.
The following provisions shall apply to all charges and informations and, not
withstanding any rule of law or practice, a charge
or information shall, subject
to the provisions of this Act, not be open to objection in respect of its form
or contents if it is
framed in accordance with the provisions of this Act
-
(a) Mode in which offences are to be charged -
(i) a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;
(ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence and, if the offence charged is one defined by a written law, shall contain a reference to the section of the written law defining the offence;
(iii) after the statement of the offence, particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:
Provided that where any rule of law or any written law limits the particulars of an offence which are required to be given in a charge or information, nothing in this sub-paragraph shall require any more particulars to be given than those so required;
(iv) the forms set out in the Schedule to this Act or forms conforming thereto as nearly as may be shall be used in the cases to which they are applicable;
(v) where a charge or information contains more than one count, the counts shall be numbered consecutively;
(b) Provisions as to statutory offences -
(i) where a written law defining an offence states the offence to be the doing or the omission to do any one of a number of different acts in the alternative, or the doing or the omission to do any act in any one of a number of any different capacities, or with anyone of a number of any different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities, intentions or other matters stated in the alternative in the written law may be stated in the count charging the offence;
(ii) it shall not be necessary, in any count charging an offence defined by a written law, to negative any exception from, or proviso or qualification to, the operation of the written law defining the offence;
(c) Description of property –
(i) the description of property in a charge or information shall be in ordinary language and such as to indicate with reasonable clarity the property referred to and, if the property is so described, it shall not be necessary, except where required for the purpose of describing an offence depending on any special ownership of property or special value of property, to name the person to whom the property belongs or the value of the property;
(ii) where the property is vested in more than one person and the owners of the property are referred to in a charge or information, it shall be sufficient to describe the property as owned by one of those persons by name with others, and if the persons owning the property are a body of persons with a collective name, such as a firm or "inhabitants", "trustees", "club" or other such name, it shall be sufficient to use the collective name without naming any individual;
(iii) property belonging to or provided for the use of any public establishment or department may be described as the property of the Republic;
(iv) coin and bank or currency notes of Nauru or of any foreign country may be described as money and any allegation as to money, so far as regards the description of the property, shall be sustained by proof of the amount of money, whether coin, bank note or currency note even though the particular species of coin or note of which that amount was composed is not proved and, in cases of stealing, embezzling and obtaining by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin, bank note or currency note, or any portion of the value thereof, even though that coin, bank note or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering it or to some other person and that part has been returned accordingly;
(d) Description of persons –
The description or designation in a charge or information of the accused, or of any other person to whom reference is made therein, shall be such as is reasonably sufficient to identify him, without necessarily stating his correct name or his abode, style, title or occupation; and, if, owing to the name of the person not being known or for any other reason, it is impracticable to give such a description or designation, a description or designation shall be given such as is reasonably practicable in the circumstances, or the person may be described as "a person unknown";
(e) Description of documents -
Where it is necessary to refer to any document or instrument in a charge or information, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport thereof, without setting out any copy thereof;
(f) General rule as to description -
Subject to any other provisions of this section, it shall be sufficient to describe any place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any charge or information in ordinary language in such a manner as to indicate with reasonable clarity the place, time, thing, matter, act or omission referred to;
(g) Statement of intent-
It shall not be necessary in stating any intent to defraud, deceive or injure to state an intent to defraud, deceive or injure any particular person, where the written law defining the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence;
(h) Mode of charging previous convictions -
Where a previous conviction of an offence is alleged in a charge or information, it shall be alleged at the end of the charge or information by means of a statement that the accused has been previously convicted of the offence at a certain time and place without stating the particulars of the offence;
(i) Use of figures and abbreviations -
Figures and abbreviations may be used for expressing anything which is commonly expressed thereby;
(j) Gross sum may be specified in certain cases of stealing-
Where a person is charged with stealing, it shall be sufficient to specify the gross amount of property alleged to have been stolen and the dates between which the stealing is alleged to have been committed without specifying particular times or exact dates.
PERSON
CONVICTED OR ACQUITTED NOT TO BE TRIED AGAIN FOR SAME
OFFENCE
94.
A person who has been once tried by a Court of competent jurisdiction for an
offence and convicted or acquitted of that offence shall,
while such conviction
or acquittal has not been reversed or set aside, not be liable to be tried again
on the same facts for the
same offence or any offence in respect of which he
could have been convicted on the charge, or any count of the charge, of which
he
was acquitted and, if required by any Court to plead to an information or charge
in respect of such an offence, may, instead of
pleading to the information or
charge, plead that he has already been convicted or acquitted of that offence,
and the Court shall
thereupon try whether that plea is true and only if it finds
the plea to be untrue shall the Court require him to plead to the information
or
charge or to the count relating to that
offence.
PERSON
MAY BE TRIED AGAIN FOR SEPARATE
OFFENCE
95.
A person convicted or acquitted of an offence may afterwards be tried for any
other offence with which he might have been charged
on the former trial under
subsection (1) of section 91 of this Act, except an offence of which he could
have been convicted on any
charge, or any count of the charge, in respect of
which he was
acquitted.
CONSEQUENCES
SUPERVENING OR NOT KNOWN AT TIME OF FORMER
TRIAL
96.
A person convicted of any act causing consequences which together with that act
constitute a different offence from that of which
he was convicted, may be
afterwards tried for that different offence if the consequences had not
happened, or were not known to the
Court to have happened, at the time when he
was
convicted.
WHERE
ORIGINAL COURT WAS NOT COMPETENT TO TRY SUBSEQUENT CHARGE
97.
Subject to the provisions of section 16 of the Criminal Code, a person convicted
or acquitted of any offence constituted by any acts
or omissions may,
notwithstanding such conviction or acquittal, be subsequently charged with and
tried for that or any other offence
constituted wholly or in part by the same
acts or omissions, if the Court by which he was first tried was not competent to
try the
offence with which he is subsequently
charged.
HOW A
PREVIOUS CONVICTION MAY BE
PROVED
98.
(1) In any trial or other proceeding under this Act, a previous conviction in
Nauru may be proved by a copy of the sentence or order
certified as such under
the hand of the Registrar or Clerk, as the case may be, of the Court in which
the conviction was had together
with evidence as to the identity of the accused
person with the person so convicted, or by any other mode provided by any law
for
the time being in force.
(2) A
certificate in the form prescribed by the Minister given under the hand of a
person appointed by the Minister in that behalf
who shall have compared the
fingerprints of a person previously convicted shall be
prima
facie evidence of all facts therein set
forth, provided that it is produced by the person who took the fingerprints of
the accused.
(3) A previous
conviction in any place outside Nauru may be proved by the production of a
certificate purporting to be given under
the hand of a police officer in the
country where the conviction was had containing a copy of the sentence or order
and the fingerprints
or photographs of the fingerprints of the person so
convicted, together with evidence that the fingerprints of the person so
convicted
are those of the accused person. Such a certificate shall be
prima
facie evidence of all facts therein set
forth without proof that the officer purporting to sign it did in fact sign it,
was a police officer
and was empowered so to
do.
WHEN LEAVE
OF CABINET NECESSARY BEFORE PROSECUTION MAY BE
INSTITUTED
99.
Proceedings for the trial of any person who is not normally resident in Nauru
for an offence committed on the open sea within the
territorial waters of Nauru
shall not be instituted in any Court except with the leave of the Cabinet and
upon a certificate purporting
to be signed by the Secretary to the Cabinet that
the Cabinet considers it expedient that such proceedings should be
instituted:
Provided that for the
purposes of the requirement of consent and a certificate under this section
proceedings before the District
Court under Part VII of this Act are not
proceedings for the trial of a
person;
And provided further that
it shall not be necessary to aver in any charge or information that the consent
or certificate of the Cabinet
required by this section has been given and the
fact of it having been given shall be presumed unless disputed by the accused
person
at the
trial.
POWER TO
SUMMON MATERIAL WITNESSES AND EXAMINE PERSONS
PRESENT
100.
(1) Any Court may at any stage of any proceeding under this Act, of its own
motion or on the application of any party, summon any
person as a witness, or
examine any person in attendance though not summoned as a witness, or recall and
re-examine any person already
examined, and the Court shall, unless the
circumstances make it impossible to do so, summon and examine or recall and
re-examine
any such person if his evidence, or further evidence, appears to it
essential to the just decision of the
case:
Provided that the
prosecutor, or the barrister and solicitor or pleader, if any, for the
prosecution, and the accused, or his barrister
and solicitor or pleader, if any,
shall have the right to cross-examine any such person, and the Court shall
adjourn the case for
such time, if any, as it thinks necessary to enable such
cross-examination to be adequately prepared if, in its opinion, either party
may
be prejudiced by the calling of any such person as a
witness.
(2) The provisions of
section 49 of the Courts Act 1972 shall apply mutatis mutandis in respect of any
person who fails to attend before any Court in obedience to a summons issued
under
the preceding subsection as though that summons had been issued under
section 48 of the said Courts
Act.
EVIDENCE
TO BE GIVEN ON OATH OR
AFFIRMATION
101.
Every witness in a criminal cause or matter shall be examined upon oath or
affirmation, and the Court before which any witness attends
shall have full
power and authority to administer the usual oath or
affirmation:
Provided that the
Court may at any time, if it thinks it just and expedient for reasons to be
recorded in the proceedings, take without
oath or affirmation the evidence of
any person who by reason of immature age ought not, in the opinion of the Court,
to be admitted
to give evidence on oath or affirmation; the fact of the evidence
having been so taken shall be recorded in the
proceedings.
REFRACTORY
WITNESSES
102.
Any person who, attending either in obedience to a summons or by virtue of a
warrant, or being present in court and being verbally
required by the Court to
give evidence, -
(a) refuses to be sworn or affirmed;
(b) having been sworn or affirmed, refuses to answer any question properly put to him; or
(c) refuses or neglects to produce any document or thing which he is required to produce,
without
in any such case offering any sufficient excuse for such refusal or neglect, is
guilty of an offence and is liable to imprisonment
for six months and a fine of
two hundred
dollars.
COMPULSORY
DISCLOSURES NOT TO AFFORD
EVIDENCE
103.
In any proceedings in respect of any offence against any written law, a
statement or admission made by any person in any compulsory
examination or
deposition before any Court on the hearing of any matter in bankruptcy or
insolvency is not admissible in evidence
against that
person.
NEGATIVE
AVERMENTS
104.
Any exception, exemption, proviso, excuse or qualification, whether it does or
does not accompany in the same section the description
of the offence in the
written law defining such offence, and whether or not specified or negatived in
the charge or complaint, maybe
proved by the accused, but no proof in relation
thereto shall be required on the part of the complainant or
prosecutor.
CASES
WHERE WIFE OR HUSBAND MAY BE CALLED WITHOUT THE CONSENT OF THE
ACCUSED
105.
(1) In any inquiry or trial the wife or husband of the accused shall be a
competent witness for the prosecution or defence without
the consent of the
accused -
(a) in any case where the wife or husband of the accused may, under any law in force for the time being, be called as a witness without the consent of the accused;
(b) in any case where the accused is charged with an offence under Chapter XXII or section 360 of the Criminal Code; and
(c) in any case where the accused is charged in respect of an act or omission affecting the person or property of the wife or husband of the accused or the children of either of them.
(2)
For the purposes of this: part of this Act no person shall be deemed to be the
wife or husband of any other person unless they
are lawfully married to one
another.
COMPETENCY
OF ACCUSED AND HUSBAND OR WIFE AS WITNESS IN CRIMINAL
CASES
106.
Every person charged with an offence, and the wife or husband, as the case may
be, of the person so charged, shall be a competent
witness for the defence at
every stage of the proceedings, whether the person so charged is charged solely
or jointly with any other
person:
Provided that
-
(a) an accused shall not be called as a witness in pursuance of this section except upon his own application;
(b) the wife or husband of the accused shall not, save as provided in section 105, be called as a witness except upon the application of that accused;
(c) nothing in this section shall make a husband compellable to disclose any communication made to him by his wife during their marriage, or a wife compellable to disclose any communication made to her by her husband during their marriage;
(d) an accused who is a witness in pursuance of this section may be asked any question in cross-examination, notwithstanding that it would tend to incriminate him as to the offence charged;
(e) an accused who is called as a witness in pursuance of this section shall not be asked and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless-
(i) the proof that he has committed or been convicted of such other offence is admissible evidence to, show that he is guilty of the offence wherewith he is then charged;
(ii) he has personally or by his barrister and solicitor or pleader, asked questions of any witness with a view to establishing his own good character or has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the complainant or the witnesses for the prosecution; or
(iii) he has given evidence against any other person charged with the same offence;
(f) every person called as a witness in pursuance of this section shall, unless otherwise ordered by the Court, give his evidence from the witness box or other place from which the other witnesses have given their evidence; and
(g) nothing in this section shall affect the provisions of section 202 of this Act or any right of the accused to make a statement without being sworn.
PROCEDURE
WHERE ACCUSED IS CALLED AS
WITNESS
107.
Where the accused is called by the defence as a witness to the facts of the
case, he shall be called as a witness immediately after
the close of the
evidence for the
prosecution.
RIGHT
OF
REPLY
108.
In cases where the right of reply depends upon the question whether evidence has
been called for the defence, the fact that the accused
has been called as a
witness shall not of itself confer on the prosecution the right of
reply.
INQUIRY
BY COURT AS TO UNSOUNDNESS OF MIND OF
ACCUSED
109.
(1) Where in the course of a trial or inquiry or at any time after a formal
charge has been presented or drawn up, the Court which
has charge of the
proceedings has reason to believe that the accused may be of unsound mind so as
to be incapable of making his defence,
it shall inquire into the fact of such
unsoundness and, if the accused is not present in court and it appears to the
Court that it
would be unreasonable to bring him before the Court, he shall be
interviewed by a magistrate, in whatever place is most appropriate,
for the
purpose of endeavouring to explain to him the nature of the charge and of
hearing whatever he has to say which is relevant
to the issue of insanity and
the magistrate shall cause a note of the interview to be placed on the record of
the proceedings.
(2) If the Court
is of opinion that the accused is of unsound mind so that he is incapable of
making his defence, it shall postpone
further proceedings in the case and shall
report the case to the
President.
(3) If the case is one
in which bail may be taken, the Court may release the accused person on
sufficient security being given that
he will be properly taken care of and
prevented from doing injury to himself or to any other person, and for his
attendance before
the Court or such officer as the Court may appoint in that
behalf.
(4) Upon consideration of
the court record or a copy thereof, the President may order that the accused be
confined in a hospital or
a suitable place of custody and the Court shall issue
a warrant in accordance with that order. Any such order of the President shall
be sufficient authority for the detention of the accused person until the
President shall make a further order, in the matter or
until the Court which has
found him incapable of making his defence orders him to be brought before it
again in the manner provided
by section 112 of this Act and, while so confined,
the accused shall be deemed to be in lawful
custody.
DEFENCE
OF UNSOUNDNESS OF MIND AT PRELIMINARY
INQUIRY
110.
Where the accused appears to be of sound mind at the time of a preliminary
inquiry, the District Court, notwithstanding that it is
alleged, that, at the
time when the act was committed in respect of which the accused is charged, he
was by virtue of the provisions
of section 27 of the Criminal Code not
criminally responsible for the act, shall proceed with the inquiry and, if the
accused ought,
in the opinion of the Court, to be committed for trial on
information, the Court shall so commit
him.
DEFENCE OF
UNSOUNDNESS OF MIND ON
TRIAL
111.
Where any act or omission
is charged against any person as an offence
and it is given in evidence on the trial of such person for that offence that by
virtue
of the provisions of section 27 of the Criminal Code he was not
criminally responsible for his act or omission at the time when the
act was done
or the omission made, then, if it appears to the Court before which that person
is tried that he did the act or made
the omission charged but was not criminally
responsible as aforesaid at the time when he did or made it, the Court shall
make a special
finding to the effect that the accused was not guilty by reason
of insanity. Where such a special finding is made, the Court shall
report the
case for the order of the President and shall meanwhile order the accused to be
kept in custody in such place and in such
manner as the Court shall direct. The
President may order the accused to be confined in a hospital or in a prison or
other suitable
place of safe custody and, while so confined, the accused shall
be deemed to be in lawful
custody.
RESUMPTION
OF TRIAL OR
INQUIRY
112.
Where any preliminary inquiry or trial is postponed under the provisions of
section 109 of this Act, the Court may at any time resume
the inquiry or trial
and require accused to attend or be brought before it and, if the Court then
considers him capable of making
his defence, the preliminary inquiry or trial
shall proceed; but, if the Court considers the accused to be still incapable of
making
his defence, it shall act as if the accused were brought before it for
the first
time.
CERTIFICATE
OF MEDICAL OFFICER OF HOSPITAL AS TO SANITY TO BE
EVIDENCE
113.
If a person is confined in a hospital under the provisions of this Act and the
medical officer in charge of that hospital certifies
that the accused appears to
be capable of making his defence, the accused shall be taken before the Court at
such time as the Court
appoints to be dealt with according to law, and the
certificate of the medical officer shall be receivable in
evidence.
PROCEDURE
WHERE ACCUSED DOES NOT UNDERSTAND
PROCEEDINGS
114.
(1) Where the accused, though not of unsound mind, cannot be made to understand
the proceedings -
(a) in cases tried by the District Court, the Court shall proceed to hear the evidence and, if at the close of the evidence for the prosecution and, if the defence has been called upon, of any evidence for the defence the Court is of opinion that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused; but, if the Court is of opinion that the evidence which it has heard would justify a conviction, it shall order the accused to be detained during the President's pleasure; but every such order shall be subject to confirmation by a judge of the Supreme Court;
(b) in cases which are the subject of a preliminary inquiry the District Court and of trial by the Supreme Court -
(i) the District Court shall hear the evidence for the prosecution and, if satisfied that a prima facie case has been proved, shall commit the accused for trial by the Supreme Court and either admit him to bail or commit him to prison for safe keeping; and
(ii) Where the Director of Public Prosecutions has filed an information, the Supreme Court shall proceed to hear the evidence and, if at the close of the evidence for the prosecution and, if the defence has been called upon, of any evidence for the defence the Court is of opinion that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused; but if the Court is of opinion that the evidence which it has heard would justify a conviction, it shall order the accused to be detained during the President's pleasure;
(iii) if the Director of Public Prosecutions states to the District Court that he does not intend to file an information, the accused shall be at once discharged in respect of the charge made against him and, if he has been committed to prison, shall be released and, if on bail, his recognizance shall be discharged; but such a discharge shall not operate as a bar to any subsequent proceedings against him on account of the same facts.
(2)
A person ordered under the provisions of this section to be detained during the
President's pleasure shall be liable to be detained
in such place and under such
conditions as the President may, from time to time, by order in writing, direct
and, while so detained,
shall be deemed to be in lawful
custody.
(3) The President may at
any time, of his own motion or after receiving a report from any person or
persons thereunto empowered by
him, order that a person detained as provided in
the last preceding subsection be discharged or otherwise dealt with subject to
such
conditions as to the person remaining under the supervision in any place or
by any person, and such other conditions for ensuring
the welfare of the said
person and the public, as the President shall think
fit.
(4) Where a person has been
ordered to be detained during the President's pleasure under the provisions of
subsection (1) of this
section, the confirming or presiding judge shall forward
to the President a copy of the notes of evidence taken at the trial, together
with a report in writing signed by him containing any recommendation or
observations on the case he may think fit to
make.
MODE OF
DELIVERING
JUDGMENT
115.
(1) The judgment in every trial of a criminal cause in any Court in the exercise
of its original jurisdiction shall be delivered,
or the substance of such
judgment shall be explained, in open court either immediately after the
termination of the trial or at some
subsequent time of which notice shall be
given to the parties and their barristers and solicitors or pleaders, if
any:
Provided that the whole
judgment shall be read out by the presiding judge or magistrate, or the
magistrate having charge of the proceedings,
as the case may be, if he is
requested to do so either by the prosecution or the
defence.
(2) The accused shall, if
in custody, be brought before the Court and, it not in custody, be required by
the Court to attend, to hear
judgment delivered, except where the Court has
proceeded to the determination of the case in the absence of the accused under
section
151 of this Act or his personal attendance during the trial has been
dispensed with and the sentence is one of a fine only or where
he is
acquitted.
(3) No judgment
delivered by any Court shall be deemed to be invalid by reason only of the
absence of any party or his barrister and
solicitor or pleader on the day or
from the place notified for the delivery thereof, or of any omission to serve,
or defect in serving,
on the parties or their barristers and solicitors or
pleaders, or any of them, the notice of such day and
place.
CONTENTS
OF
JUDGMENT
116.
(1) Every judgment in the trial of a criminal cause shall, except as otherwise
expressly provided by any written law, be written
by the presiding judge or
magistrate, or the magistrate having charge of the proceedings, as the case may
be, in the language of
the Court, and shall contain the point or points for
determination, the decision thereon and the reasons for the decision, and shall
be dated and signed by the presiding judge or magistrate, or the magistrate
having charge of the proceedings, in open court at the
time of pronouncing
it:
Provided that where the
accused has admitted the truth of the charge and has been convicted, it shall be
a sufficient compliance with
the provisions of this subsection if the judgment
contains only the finding and sentence or other final order and is signed and
dated
by the presiding judge or magistrate, or the magistrate having charge of
the proceedings, as the case may be, at the time of pronouncing
it.
(2) In the case of a
conviction the judgment shall specify the offence of which and in the case of an
offence defined by the Criminal
Code or any other written law the section of the
Criminal Code or other written law under which, the accused is convicted and the
sentence imposed.
(3) In the case
of an acquittal the judgment shall state the offence of which the accused is
acquitted and shall direct that he be
set at
liberty.
COPY
OF JUDGMENT, ETC., TO BE GIVEN TO ACCUSED ON
APPLICATION
117.
On the application of the accused a copy of the judgment or, if he so desires
and it is reasonably practicable, a translation in
his own language, shall be
given to him free of cost without unnecessary
delay.
COSTS
118.
(1) The Supreme Court or the District Court may order any person convicted
before it of an offence, or discharged by it under the
provisions of any written
law following a finding that he is guilty of an offence, to pay to a public or
private prosecutor such
reasonable costs as to that Court may seem fit, in
addition to any other penalty
imposed.
(2) Where the Supreme
Court or the District Court acquits or discharges a person accused of an
offence, it may order the prosecutor,
whether public or private, to pay to the
accused such reasonable costs as to that Court may seem
fit:
Provided that such an order
shall not be made unless the Court considers that the prosecutor either had no
reasonable grounds for
brining the proceedings or has unreasonably prolonged
them.
(3) The costs awarded under
this section may be awarded in addition to any compensation awarded under
section 120 of this Act. Payment
of costs by the accused or by a private
prosecutor shall be enforceable in the same manner as a
fine.
(4) Costs ordered to be paid
by a public prosecutor shall be paid from, and be a charge upon, the Treasury
Fund.
(5) in this section "private
prosecutor" means any prosecutor other than a public prosecutor or a police
officer appearing and conducting
a prosecution in pursuance of subsection (3) of
section 48 of this
Act.
ORDER TO
PAY COSTS
APPEALABLE
119.
An appeal shall lie to the Supreme Court under the Appeals Act 1972 from any
order made by the District Court awarding
costs.
COMPENSATION
IN CASE OF FRIVOLOUS OR VEXATIOUS
CHARGES
120.
If on the acquittal of an accused or the dismissal of any charge the District
Court is of opinion that the charge was frivolous or
vexatious, the Court may
order the complainant to pay to the accused in addition to his costs a
reasonable sum as compensation for
the trouble and expense to which he has been
put by reason of the
charge.
POWER
OF COURTS TO AWARD EXPENSES OR COMPENSATION OUT OF
FINE
121.
(1) Any Court may, in its discretion, order the whole or any part of any fine
imposed or money found on or in the possession of a
person who has been, or is
subsequently, convicted, or who has been, or is subsequently, discharged without
conviction under the
provisions of any written law following a finding that he
is guilty of an offence, to be applied in or towards -
(a) the defraying of the costs or expenses properly incurred in the prosecution;
(b) the payment to any person of compensation for any loss or injury caused by the offence of which the accused has been convicted or found guilty or by any other offence which is taken into consideration by the Court in determining his sentence;
(c) the defraying of any compensation awarded under the provisions of the last preceding section;
(d) the payment to any person of compensation for any loss sustained by him in consequence of any order made under the provisions of this Part of this Act for the restitution or disposal of any property or thing.
(2)
In determining whether or not to impose a fine and in deciding the quantum of a
fine, a Court may take into account the fact that
an order under the preceding
subsection would be appropriate but shall at all times have regard to the means
of the accused as they
appear or are known to the
Court.
(3) If an order is made
under subsection (1) in a case which is subject to appeal no payment ordered
shall be made before the period
allowed for presenting the appeal has elapsed
or, if an appeal is presented, before the determination of the
appeal.
(4) At the time of
awarding compensation in any subsequent civil suit relating to the same matter,
a Court shall take into account
any sum paid or recovered as compensation under
this section.
(5) At any time
before compensation has been paid in pursuance of an order made under subsection
(1) if it appears to the Court that
-
(a) the loss or injury in respect of which the order was made has been held in civil proceedings to be less than it was taken to be for the purposes of the order; or
(b) where the order related to the loss of any property, the property has been recovered by the person in whose favour the order was made,
the
Court may, upon the application of the accused, cancel or amend the order and by
such amendment may, if it thinks fit, order that
any part of the fine, if paid,
be refunded to the accused.
(6)
Where the Supreme Court in the exercise of its appellate or revisional
jurisdiction imposes or increases any fine or quashes an
order of acquittal and
imposes a conviction, it shall have the same powers to make an order under
subsection (1) as though it were
the court of first
instance.
PAYMENT
TO INNOCENT PERSON OF MONEY FOUND ON
ACCUSED
122.
Where any person is found guilty of any offence of, or which includes, stealing
or receiving stolen property and the Court which
has found him guilty is
satisfied that any other person has bought the stolen property from him without
knowing or having reason
to suspect that it was stolen, then, if any money has
been found on or in the possession of the person found guilty, the Court may,
whether or not it proceeds to conviction, on the application of the purchaser
and on the restitution of the stolen property to the
person entitled to the
possession thereof, order that out of that money a sum not exceeding the price
paid by the purchaser shall
be delivered to
him.
PROMOTION
OF
RECONCILIATION
123.
A Court may on terms of payment of compensation or other terms approved by it
promote reconciliation and encourage and facilitate
the settlement in an
amicable way of all proceedings before it for common assault or for any other
offence of a personal or private
nature for which, upon conviction, a fine or
sentence of imprisonment for a term of not exceeding one year may be imposed,
and may
thereupon order the proceedings to be stayed or
terminated.
PRESERVATION
OR DISPOSAL OF
PROPERTY
124.
(1) It shall be lawful for any Court in any criminal proceedings to make orders
for -
(a) the preservation, or interim custody or detention, of any property produced in evidence or as to which any question may arise in the proceedings;
(b) the sale, destruction or other disposal of any such property as may be of a perishable nature or liable to deteriorate, or as may be dangerous;
(c) the restoration or awarding of possession of any such property to the person appearing to the Court to be entitled to possession thereof, without prejudice however to any civil proceedings which may be taken with respect thereto;
(d) the payment by any person of the expense incurred in or about the preservation, custody, detention, sale, destruction or other disposal of any such property or the proceeds thereof;
(e) the application of any such property or the proceeds thereof, in or towards satisfaction or payment of any such costs or compensation as may be ordered by the Court to be paid by any person.
(2)
Any order made under the provisions of paragraph (d) of the last preceding
subsection may be enforced as if the order were the
imposition of a
fine.
(3) Where an order is made
under the provisions of this section in a case in which an appear lies, such
order shall not, except where
the property is liable to deterioration or decay
or is dangerous, be carried out until the period allowed for presenting an
appeal
has passed or, where an appeal is presented within that period, until the
appeal has been
determined.
PROPERTY
STOLEN TO BE RESTORED TO
OWNER
125.
(1) If any person guilty of any such offence as is mentioned in Chapters XXXVI
to XLIV, inclusive, of the Criminal Code, by stealing,
taking, obtaining,
extorting, converting or disposing of, or by knowingly receiving, any property,
is prosecuted to conviction by
a public prosecutor or by or on behalf of the
owner of that property, or is found guilty on any such prosecution but is
discharged
under the provisions of any written law without conviction, the
property shall be restored to the owner or his
representative.
(2) In every case
referred to in the preceding subsection, the Court before which any such
offender is convicted, or discharged without
conviction, shall have power to
award from time to time writs of restitution for the property or to order the
restitution thereof
in a summary
manner:
Provided that
-
(a) where goods as defined in the Sale of Goods Act 1893 of England in its application to Nauru have been obtained by fraud or other wrongful means not amounting to stealing, the property in those goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender; and
(b) nothing in this section shall apply to the case of any valuable security which has been in good faith paid or discharged by some person liable for the payment thereof or, being a negotiable instrument, has been in good faith taken or received by transfer or delivery by some person for a just and valuable consideration without any notice or without reasonable cause to suspect that the same had been stolen.
(3)
The operation of any order under this section shall, unless the Court before
which the conviction or discharge takes place directs
to the contrary in any
case in which the title to the property is not in dispute, be suspended
-
(a) in any case until the time allowed for presenting an appeal has passed, and
(b) in a case where an appeal is presented, until the determination of the appeal, and, in cases where the operation of any such order is suspended until the determination of the appeal, the order shall not take effect as to the property in question if the conviction is quashed on appeal, unless the Supreme Court so directs. The Chief Justice may make provision by rules for securing the safe custody of any property pending the suspension of the operation of any such order.
(4)
Any person aggrieved by an order made under this section by the District Court
may appeal to the Supreme Court and upon the hearing
of any such appeal the
Court may by order annul or vary any order made on a trial for the restitution
of any property to any person,
even though the conviction or order of discharge
is not quashed; and the order, if annulled, shall not take effect and, if
varied,
shall take effect as so
varied.
STAY OF
ORDER
126.
Upon the application of any person affected by any order or interested in the
property the subject of any order made under the provisions
of the last
preceding two sections, the Supreme Court may direct any such order made by the
District Court to be stayed pending consideration
by the Supreme Court and may
modify, alter or annul any such
order.
RESTORATION
OF POSSESSION OF REAL
PROPERTY
127.
(1) Where a person is convicted of an offence attended by criminal force, threat
or intimidation and it appears to the Court that
by such force, threat or
intimidation any person has been dispossessed of any real property, the Court
may, if it thinks fit, order
possession of that property to be restored to the
person so dispossessed.
(2) Any
order under this section may be enforced by warrant addressed to a police
officer.
(3) No such order shall
prejudice any right or interest to or in the real property which any person may
be able to establish in a
civil suit or in proceedings before the Nauru Lands
Committee.
PROCEDURE
BY POLICE ON SEIZURE OF
PROPERTY
128.
(1) A report of any property or thing which has come into the possession of any
police officer in connection with any charge or offence
or suspected offence,
the ownership of which property or thing is in doubt, shall be made forthwith to
the resident magistrate who
shall make such order as he thinks fit respecting
the delivery of the property to the person entitled to the possession thereof
or,
if such person cannot be ascertained, respecting the custody and protection
of the property.
(2) If the
identity of the person entitled to possession of the property is known, the
resident magistrate may order the property
to be delivered to him on such
conditions, if any, as he thinks
fit.
(3) The resident magistrate
shall, on making an order under the provisions of the last preceding subsection,
cause a notice to be
served on the person entitled to possession of the property
informing him of the terms of the order and requiring him to take delivery
of
the property within such period from the date of the service of the notice, not
being less than forty eight hours, as the resident
magistrate may in such notice
prescribe.
(4) If the person
entitled to possession of the property is unknown or cannot be found, the
resident magistrate shall direct that
the property be detained in police custody
and it shall thereafter be dealt within accordance with the provisions of
section 28 of
the Nauru Police Force Act 1972 as though it were property which
has come into the custody of the police other than in connection
with a criminal
charge and the provisions of section 31 of that Act shall apply to such property
where
appropriate.
CONVICTION
OF MINOR OFFENCE INCLUDED IN OFFENCE
CHARGED
129.
(1) Where a person is charged with an offence consisting of several particulars,
one or a combination of some only of which constitutes
another complete offence,
and that one particular, or such combination, is proved but the remaining
particulars are not proved, he
may be convicted of that other offence although
he is not charged with it.
(2)
Where a person is charged with an offence and facts are proved which reduce it
to a minor and cognate offence, he may be convicted
of the minor offence
although he is not charged with
it.
(3) In this subsection, a
minor offence is one for which, upon conviction, a lesser maximum sentence is
provided by
law.
CONVICTION
OF
ATTEMPT
130.
Where a person is charged with an offence, he may be convicted of having
attempted to commit that offence, although he is not charged
with the
attempt.
CONVICTION
OF KILLING UNBORN CHILD ON CHARGE OF MURDER,
ETC.
131.
Where a person is charged with the murder or manslaughter of any child, or with
an offence under section 224 or section 225 of the
Criminal Code relating to the
procuring of abortion, and the Court by which he is tried is of opinion that he
is not guilty of murder,
manslaughter or of an offence under section 224 or
section 225 of the Criminal Code, but is satisfied that he is guilty of the
offence
of killing an unborn child, he may be convicted of that offence although
he is not charged with
it.
CONVICTION
OF PROCURING ABORTION ON CHARGE OF KILLING UNBORN
CHILD
132.
Where a person is charged with killing an unborn child and the Court by which he
is tried is of opinion that he is not guilty of
that offence but is satisfied
that he is guilty of an offence under section 224 or section 225 of the Criminal
Code, he may be convicted
of that offence although he is not charged with
it.
CONVICTION
OF CONCEALMENT OF BIRTH ON CHARGE OF MURDER,
ETC.
133.
Where a person is charged with the murder or infanticide of any child or with
killing an unborn child and the Court by which he is
tried is of opinion that he
is not guilty of any of those offences but is satisfied that he is guilty of an
offence under section
314 of the Criminal Code, he may be convicted of that
offence although he is not charged with
it.
CONVICTION
OF CARELESS OR DANGEROUS DRIVING ON CHARGE OF
MANSLAUGHTER
134.
Where a person is charged with manslaughter in connexion with the driving of a
motor vehicle by him and the Court by which he is
tried is of the opinion that
he is not guilty of the offence charged, but is satisfied that he is guilty of
an offence under section
19 of the Motor Traffic Act 1937-1972, he may be
convicted of that offence although he is not charged with
it.
CONVICTION
OF COGNATE OFFENCE ON CHARGE OF
RAPE
135.
Where a person is charged with rape and the Court is of opinion that he is not
guilty of that offence but is satisfied that he is
guilty of an offence under
one of the sections 212, 214, 215, 218, 222 and 350 of the Criminal Code, he may
be convicted of that
offence although he is not charged with
it.
CONVICTION
OF UNLAWFUL CARNAL KNOWLEDGE ON CHARGE OF
INCEST
136.
Where a person is charged with an offence under section 222 of the Criminal Code
and the Court by which he is tried is of opinion
that he is not guilty of that
offence but is satisfied that he is guilty of an offence under section 212 or
section 215 of the Criminal
Code, he may be convicted of that offence although
he is not charged with
it.
CONVICTION
OF COGNATE OFFENCE ON CHARGE OF DEFILEMENT OF GIRL UNDER SEVENTEEN YEARS OF
AGE
137.
Where a person is charged with the defilement of a girl under the age of
seventeen years and the Court by which he is tried is of
opinion that he is not
guilty of that offence but is satisfied that he is guilty of an offence under
one of the sections 212, 218
and 350 of the Criminal Code, he may be convicted
of that offence although he is not charged with
it.
CONVICTION
OF COGNATE OFFENCE ON CHARGE OF DEFILEMENT OF GIRL UNDER THIRTEEN YEARS OF
AGE
138.
Where a person is charged with the defilement of a girl under the age of
thirteen years and the Court by which he is tried is of
opinion that he is not
guilty of that offence but is satisfied that he is guilty of an offence under
one of the sections 215, 218
and 350 of the Criminal Code, he may be convicted
of that offence although he is not charged with
it.
CONVICTION
OF COGNATE OFFENCE ON CHARGE OF BURGLARY,
ETC.
139.
Where a person is charged with any offence mentioned in Chapter XXXIX of the
Criminal Code and the Court by which he is tried is
of opinion that he is not
guilty of that offence but, is satisfied that he is guilty of any other offence
mentioned in that Chapter,
he may be convicted of that other offence although he
is not charged with
it.
CONVICTION
OF RECEIVING, RETAINING OR OBTAINING BY FALSE PRETENCES ON CHARGE OF
STEALING
140.
Where a person is charged with stealing any thing and -
(a) it is proved that he received or retained the thing knowing, or having reason to believe, it to have been stolen, he may be convicted of the offence of receiving or retaining although he is not charged with it;
(b) it is proved that he obtained the thing in any such manner as would amount, under the provisions of the Criminal Code or of any other written law for the time being in force, to obtaining it be a false pretence or a wilfully false promise with intent to defraud, he may be convicted of the offence of obtaining it by a false pretence or a wilfully false promise although he is not charged with it.
CONVICTION
OF STEALING ON CHARGE OF OBTAINING BY A FALSE
PRETENCE
141.
Where a person is charged with obtaining anything capable of being stolen by a
false pretence or a wilfully false promise with intent
to defraud and it is
proved that he stole the thing, he may be convicted of the offence of stealing
although he is not charged with
it.
CONVICTION
OF ASSAULT WITH INTENT TO ROB ON CHARGE OF
ROBBERY
142.
Where a person is charged with robbery and it is proved that he committed an
assault with intent to rob, he may be convicted of that
offence although he is
not charged with
it.
CONSTRUCTION
OF SECTIONS 129 TO 142
INCLUSIVE
143.
The provisions of sections 129 to 142, inclusive, of this Act shall be construed
as in addition to, and not in derogation of, the
provisions of any other written
law and the other provisions of this Act, and the provisions of sections 130 to
142, inclusive, shall
be construed as being without prejudice to the generality
of the provisions of section
129.
PERSONS
CHARGED WITH JOINTLY RECEIVING PROPERTY MAY BE CONVICTED ON PROOF THAT PROPERTY
WAS RECEIVED
SEPARATELY
144.
Where any two or more persons are charged with jointly receiving or retaining
any property knowing, or having reason to believe,
the same to have been stolen
or unlawfully obtained, and it is proved that one or more of such persons
separately received or retained
any part of such property, such of the persons
may be convicted as are proved to have received any part of such
property.
PART V - MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS
EVIDENCE
TO BE TAKEN IN PRESENCE OF
ACCUSED
145.
Except as otherwise expressly provided, all evidence taken in any inquiry or
trial under this Act shall be taken in the presence
of the accused or, where his
personal attendance has been dispensed with, in the presence of his barrister
and solicitor or pleader
if
any:
Provided that nothing in this
section shall render it unlawful for any Court to take evidence in an inquiry or
trial in the absence
of the accused, if he has by his misconduct in court
prevented the taking of such evidence in his
presence.
PROOF
BY WRITTEN
STATEMENT
146.
(1) In any criminal proceedings, other than a preliminary inquiry a written
statement by any person shall, if such of the conditions
mentioned in the next
following subsection as are applicable are satisfied, be admissible as evidence
to the like extent as oral
evidence to the like effect by that
person.
(2) The conditions
referred to in the last preceding subsection are-
(a) the statement purports to be signed by the person who made it;
(b) the person who made it cannot conveniently attend before the Court at the time when the Court will take evidence in those proceedings;
(c) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true;
(d) before the trial at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; and
(e) none of the other parties, or their barristers and solicitors or pleaders if any, within seven days from the service of the copy of the statement, serves on the party so proposing a notice objecting to the statement being tendered in evidence under this section:
Provided
that the conditions mentioned in paragraphs (b), (c), (d) and (e) of this
subsection shall not apply if the parties agree
before or during the hearing
that the statement shall be so
tendered.
(3) The following
provisions shall also have effect in relation to any written statement tendered
in evidence under this section,
that is to say-
(a) if the statement is made be a person under the age of twenty-one, it shall give his age;
(b) if it is made by a person who cannot read it, it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read;
(c) if it refers to any other document as an exhibit, the copy served on any other party to the proceedings under paragraph (d) of the last preceding subsection shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy thereof;
(d) if it is in any language other than the language of the Court, it shall have annexed to it a translation into that language made and certified by an officer of either of the Courts or by some other person authorised in writing in that behalf by the Chief Justice; and
(e) if it is in a language which is not the mother tongue of the accused and that person does not understand the English language and is not represented by a barrister and solicitor or pleader, there shall be annexed to the copy served on that accused a translation into the language which is his mother tongue, or another language which he understands, made and certified by an officer of either of the Courts or by some other person authorised in writing in that behalf by the Chief Justice.
(4)
So much of any statement as is admitted in evidence by virtue of this section
shall, unless the Court otherwise directs, be read
aloud at the hearing and
where the Court so directs an account shall be given orally of so much of any
statement as is not read
aloud.
(5) Any document or object
referred to as an exhibit and identified in a written statement tendered in
evidence under this section
shall be treated as if it had been produced as an
exhibit and identified in Court by the maker of the
statement.
(6) A document required
by this section to be served on any person may be served-
(a) by delivering it to him or to his barrister and solicitor or pleader;
(b) by addressing it to him and leaving it at his usual or last known place of residence or place of business;
(c) in the case of an incorporated company, corporation or other body corporate, by serving it on the secretary, local manager or other principal officer of the company, corporation or body or in such other manner as the Court may direct.
PROOF
BY FORMAL
ADMISSION
147.
(1) Subject to the provisions of this section, any fact of which oral evidence
may be given in any criminal proceedings may be admitted
for the purpose of
those proceedings by or on behalf of the prosecutor or accused and the admission
by any party of any such fact
under this section shall as against that party be
conclusive evidence in those proceedings of the fact
admitted.
(2) An admission under
this section-
(a) may be made before or at the proceedings;
(b) if made otherwise than in court, shall be in writing;
(c) if made in writing by an accused who is a natural person, shall purport to be signed by the person making it and, if so made by or on behalf of an accused which is a body corporate, shall purport to be signed by a director, manager, secretary or other officer of the body corporate;
(d) if made on behalf of an accused who is a natural person, shall be made by his barrister and solicitor or pleader, if he is represented, and by himself if he is unrepresented;
(e) if made at any stage before the trial by and accused who is a natural person, must be approved and countersigned by a barrister and solicitor or pleader representing him, whether at the time it was made or subsequently, before or at the proceedings in question.
(3)
An admission under this section for the purpose of proceedings relating to any
matter shall be treated as an admission for the
purpose of any subsequent
criminal proceedings relating to that matter including any appeal or
retrial.
(4) An admission under
this section may with the leave of the Court be withdrawn in the proceedings for
the purpose of which it was
made or any subsequent criminal proceedings relating
to the same
matter.
NOTICE
OF
ALIBI
148.
(1) On a trial in the Supreme Court the accused shall not without the leave of
the Court adduce evidence in support of an alibi unless,
before the end of the
prescribed period, he gives notice of particulars of the
alibi.
(2) Without prejudice to
the last preceding subsection, on any such trial the accused shall not without
the leave of the Court call
any other person to give such evidence
unless-
(a) the notice under that subsection includes the name and address of the witness or, if the name or address is not known to the accused at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness;
(b) if the name or the address is not included in that notice, the Court is satisfied that the accused, before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained;
(c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness, he forthwith gives notice of the name, address or other information, as the case may be; and
(d) if the accused is notified by or on behalf of the prosecutor that the witness has not been traced by the name or at the address given, he forthwith gives notice of any such information which is then in his possession or, on subsequently receiving any such information, forthwith gives notice of it.
(3)
The Court shall not refuse leave under this section if it appears to the Court
that the accused was not informed by the District
Court of the requirements of
this section.
(4) Any evidence
tendered to disprove an alibi may, subject to any directions by the Court as to
the time it is to be given, be given
before or after evidence is given in
support of the alibi.
(5) Any
notice purporting to be given under this section on behalf of the accused by his
barrister and solicitor or pleader shall,
unless the contrary is proved, be
deemed to be given with the authority of the
accused.
(6) A public notice under
subsection (1) of this section shall either be given in court in the District
Court during, or at the end
of, the preliminary inquiry or be given in writing
to the prosecutor, or his barrister and solicitor or pleader, if any, and a
notice
under paragraph (c) or paragraph (d) of subsection (2) of this section
shall be given in writing to the prosecutor or his barrister
and solicitor or
pleader, if any.
(7) A notice
required by this section to be given to the prosecutor or his barrister and
solicitor or pleader may be given by delivering
it to him, or by leaving it at
his office.
(8) In this
section-
"evidence in support of an alibi" means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;
"the prescribed period" means the period of seven days from the end of the preliminary inquiry in the District Court;
"the prosecutor", where the information has been filed by a pubic prosecutor, means the Director of Public Prosecutions.
INTERPRETATION
OF EVIDENCE TO
ACCUSED
149.
(1) Where any evidence is given in a language not understood by the accused and
he is present in person, it shall be interpreted
to him in open court in a
language which he understands.
(2)
Where documents are put in for the purpose of formal proof it shall be in the
discretion of the Court to interpret to the accused
as much thereof as appears
necessary.
PART VI - PROCEDURE IN TRIALS BEFORE THE DISTRICT COURT
NON-ATTENDANCE
OF COMPLAINANT AT
HEARING
150.
(1) Where in any case which the District Court has jurisdiction to hear and
determine the accused attends in obedience to the summons
served upon him at the
time and place appointed in the summons for the hearing of the case, or is
brought before the Court under
arrest, then, if the complainant, having had
notice of the time and place appointed for the hearing of the charge, does not
attend,
himself or by his barrister and solicitor or pleader, the Court shall
dismiss the charge, unless for some reason it shall think it
proper to adjourn
the hearing of the case until some other date upon such terms as it shall think
fit, in which event it may, pending
that adjourned hearing, either admit the
accused to bail or remand him to prison, or take such security for his
attendant, as the
Court shall think fit, or order him to attend without taking
security.
(2) The expression
"barrister and solicitor or pleader" in this section and in sections 153 and 155
of this Act shall in relation
to a complainant be taken to include a public
prosecutor and a police officer appearing and conducting a prosecution in
pursuance
of subsection (3) of section 48 of this
Act.
COURT MAY
PROCEED WITH HEARING IN ABSENCE OF ACCUSED IN CERTAIN
CASES
151.
(1) Notwithstanding the provisions of section 145 of this Act, if an accused who
has sent to the Court a plea of guilty in writing
or is charged with any offence
for which upon conviction the maximum sentence which can be imposed is a fine
not exceeding two hundred
dollars or imprisonment, otherwise than in default of
payment of a fine, for a period not exceeding six months or both such fine
and
imprisonment does not attend in the District Court at the time and place
appointed in and by the summons or by any bond for his
attendance that he may
have entered into, and his personal attendance has not been dispensed with under
section 61 of this Act, the
Court may, on being satisfied that the plea of
guilty in writing is unequivocal or on proof of the proper service of the
summons
a reasonable time before, or on production of the bond, as the case may
be, proceed to hear and determine the case in the absence
of the accused or may
adjourn the case and issue a warrant for the arrest of the accused in accordance
with the provisions of section
63 of this
Act.
(2) Notwithstanding the
provisions of the preceding subsection, no person shall be tried in his absence
unless he has consented
thereto:
Provided that, where any
person has been served with a summons containing a direction made under section
61 for his personal attendance
to be dispensed with and the summons is endorsed
with a notice that, if he does not attend, he will be deemed to have consented
to
the trial taking place in his absence, he shall be deemed to have so
consented.
ATTENDANCE
OF BOTH
PARTIES
152.
Where at the time appointed for the hearing of the case both the complainant, by
himself or by his barrister and solicitor or pleader
if any, and the accused
person attend before the District Court, or if the complainant attends in the
manner aforesaid and the personal
attendance of the accused has been dispensed
with under section 61 of this Act, the Court shall, subject to the provisions of
section
154 of this Act, proceed to hear the
case.
WITHDRAWAL
OF
CHARGE
153.
(1) The prosecutor in any case which is before the District Court for trial may
with the consent of the Court at any time before
a final order is passed in any
case under this Part withdraw the
charge.
(2) On any withdrawal as
aforesaid-
(a) where the withdrawal is made after the accused person is called upon to make his defence, the Court shall acquit the accused;
(b) where the withdrawal is made before the accused person is called upon to make his defence, the Court shall, subject to the provisions of sections 158 and 201 of this Act, in its discretion make one or other of the following orders-
(i) an order acquitting the accused;
(ii) an order discharging the accused.
(3)
An order discharging the accused under sub-paragraph (ii) of paragraph (b) of
the last preceding subsection shall not operate
as a bar to subsequent
proceedings against the accused on account of the same
facts.
ADJOURNMENT
154.
Before or during the trial of any charge by the District Court, it shall be
lawful for the Court in its discretion to adjourn the
trial to a certain time
and place to be then appointed and stated in the presence and hearing of the
party or parties or their respective
barristers and solicitors or pleaders, if
any, then present, and in the meantime the Court may permit the accused to go at
large,
or may commit him to prison, or may release him upon his entering into a
recognizance, with or without sureties at the discretion
of the Court;
conditioned for his attendance at the time and place to which such hearing or
further hearing is
adjourned:
Provided that no such
adjournment shall be for more than thirty days or, if the accused has been
committed to prison, for more than
fifteen
days.
NON-ATTENDANCE
OF PARTIES AFTER
ADJOURNMENT
155.
(1) If at the time and place to which the trial or further trial of any criminal
proceeding is adjourned by the District Court, the
accused does not attend
before the Court, and he has consented, personally or by his barrister and
solicitor or pleader, if any,
to the trial taking place in his absence, the
Court may, in its discretion, proceed with the trial or further trial as if the
accused
were present, and if the complainant does not attend, himself or by his
barrister and solicitor or pleader, the Court may dismiss
the charge with or
without costs as the Court shall think
fit.
(2) Where an accused who has
not attended before the District Court at the time and place to which the trial,
or further trial, of
any criminal proceeding has been adjourned, has not
consented to the trial taking place in his absence or the Court has in its
discretion
not proceeded with the trial or further trial, the Court may issue a
warrant for his arrest and for him to be brought before the
Court and shall
further adjourn the trial or further trial
accordingly.
CONVICTION
IN ABSENCE OF ACCUSED MAY BE SET
ASIDE
156.
If the District Court convicts any accused in his absence, it shall set aside
such conviction upon being satisfied that his absence
was from causes over which
he had no control and that he had a probable defence on the
merits.
COMMENCEMENT
OF SENTENCE PASSED IN ABSENCE OF
ACCUSED
157.
Any sentence passed on any person under section 151 or section 155 of this Act
shall be deemed to commence from the date of his arrest
in execution of the
committal warrant, and the person making the arrest shall endorse the date
thereof on the back of the
warrant.
CERTAIN
PROVISIONS RELATING TO SUPREME COURT TO APPLY TO DISTRICT
COURT
158.
The provisions of sections 187, 190, 191 (except subsection (1)), 192, 193, 194,
195, 198, 201, 202, 203, 204, 205, 206, 207, 210,
211 and 212 of this Act shall
apply mutatis mutandis to trials in the District Court as they do to trials in
the Supreme
Court.
LIMITATION
OF TIME FOR SUMMARY TRIALS IN CERTAIN
CASES
159.
Except where a longer time is specially allowed by law, no offence for which
upon conviction the maximum sentence which may be imposed
is one of imprisonment
for a period not exceeding six months or a fine not exceeding two hundred
dollars or both, whether or not
such sentence may be accompanied by any order of
disqualification, shall be triable by any Court, unless the charge or complaint
relating to it is laid within six months from the time when the subject-mater of
such charge or complaint
arises.
POWER
TO STOP SUMMARY TRIAL AND HOLD PRELIMINARY INQUIRY IN
LIEU
160.
(1) If before or at any stage of a trial by the District Court before the
accused is required to make a defence it appears to the
Court that the case is
one which ought to be tried by the Supreme Court or if before the commencement
of the trial an application
in that behalf is made by the prosecutor or the
accused that it shall be so tried, the District Court may, if it thinks fit, not
proceed with the trial but in lieu thereof hold a preliminary inquiry in
accordance with the provisions of Part VII of this
Act.
(2) No appeal shall lie from
the decision of the District Court upon any application made under this
section.
(3) Where, under
subsection (1) of this section, the District Court holds a preliminary inquiry
into any offence after it has received
evidence on the trial of that offence,
that evidence shall be deemed to have been received in the course of the
preliminary inquiry
and that part of it which is the evidence of any witness
given in court or the written statement of any witness tendered under section
146 of this Act shall be deemed to be a deposition taken or a statement received
under section 164 or section 166 of this
Act.
COMMITTAL
TO SUPREME COURT FOR
SENTENCE
161.
(1) Notwithstanding the provisions of sections 158, 190, 194 and 207 of this Act
but subject to the provisions of this section, where
an accused is tried by the
District Court and convicted of any offence and, on obtaining information as to
his character and antecedents,
the District Court is of opinion that they are
such that a greater sentence should be imposed in respect
of the offence than it has power to impose, it may, in lieu of dealing with him
in any manner in which it has power to deal
with him, commit him in custody or
on bail to the Supreme Court for sentence in accordance with the following
provisions of this
section.
(2)
Where the accused is committed for sentence under this section the following
provisions shall have effect, that is to say-
(a) the Supreme Court shall examine a copy of the record of the proceedings in the District Court and may itself inquire further into the circumstances of the case other than the finding of guilt and it shall have power to deal with the accused in any manner in which he could have been dealt with if he had been convicted by the Supreme Court;
(b) if dealt with the Supreme Court, the accused shall have the same right of appeal against his conviction, if any, as if he had been convicted and sentenced by the District Court and shall have the same, but no greater right of appeal, if any, against his sentence as he would have had if he had been convicted and sentenced by the Supreme Court; and
(c) the Supreme Court, after hearing a public prosecutor representing the Republic if he desires to be heard, may, instead of dealing with the accused under paragraph (a) of this subsection, remit him, in custody or on bail, to the District Court for sentence and thereafter the accused shall be dealt with by that Court and shall have the same right of appeal, if any, as he would have had if no such committal to the Supreme Court had been made.
PART VII - COMMITTAL OF ACCUSED PERSONS TO THE SUPREME COURT FOR TRIAL
DISTRICT
COURT TO HOLD PRELIMINARY
INQUIRY
162.
(1) Where any charge has been brought against any person of an offence not
triable by the District Court or as to which the District
Court is of opinion
that it ought to be tried by the Supreme Court, a preliminary inquiry shall be
held by the District Court according
to the provisions hereinafter
contained.
(2) The language of the
Court in any preliminary inquiry shall be
English.
CHARGE
TO BE READ OVER TO
ACCUSED
163.
At the commencement of a preliminary inquiry the Court shall read over and
explain to, the accused the charge in respect of which
the inquiry is being
held, and shall explain to him that he will have an opportunity later on in the
inquiry of making a statement
if he so desires, and shall further explain to him
the purpose of the proceedings, namely to determine whether there is sufficient
evidence to put him on his trial by the Supreme
Court.
DEPOSITIONS
164.
(1) The District Court, when holding a preliminary inquiry, shall, subject to
the provisions of section 166 of this Act, in the presence
of the accused take
down in writing in English, or cause to be taken down, the statements on oath of
those who are competent to
be sworn and the statements of any other
witnesses whose evidence may lawfully be received and shall sign every such
statement at the
end thereof Statements of witnesses so taken down in writing
are termed depositions.
(2) The
accused may put questions to every witness and the answer of the witness thereto
shall form part of the deposition of that
witness.
(3) If the accused is not
represented by a barrister and solicitor or pleader, the Court shall, at the
close of the examination-in-chief
of each witness for the prosecution, ask the
accused whether he wishes to put any questions to that
witness.
VARIANCE
BETWEEN EVIDENCE AND
CHARGE
165.
At a preliminary inquiry no objection to a charge, summons or warrant for defect
in substance or in form, or for variance between
it and the evidence of the
prosecution, shall be allowed; but if any variance appears to the Court to be
such that the accused person
has been thereby misled, the Court may, on the
application of the accused, adjourn the inquiry and allow any witness to be
recalled
and such questions to be put to him as by reason of the terms of the
charge may have been omitted and if any witness is
recalled, the prosecutor shall have the right to re-examine him on matters
arising out of any such
questions.
WRITTEN
STATEMENTS BEFORE THE DISTRICT
COURT
166.
(1) Notwithstanding the provisions of sections 164 and 165 of this Act, in a
preliminary inquiry under this Part of this Act a written
statement by any
person shall, if the conditions mentioned in the next following subsection are
satisfied, be admissible as evidence
to the like extent as oral evidence to the
like effect by that person.
(2)
The said conditions are:
(a) the statement purports to be signed by the person who made it;
(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true;
(c) before the statement is tendered in evidence, a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings; and
(d) none of the other parties, before the statement is tendered in evidence at the preliminary inquiry, objects to the statement being so tendered under this section.
(3)
The following provisions shall also have effect in relation to any written
statement tendered in evidence under this section,
that is to
say-
(a) if the statement is made by a person under the age of twenty-one, it shall give his age;
(b) if it is made by a person who cannot read it, it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read;
(c) if it refers to any other document as an exhibit, the copy given to any other party to the proceedings under paragraph (c) of the last preceding subsection shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof;
(d) if it is in any language other than English, it shall have annexed to it a translation into English made and certified by an officer of either of the Courts or by some other person authorised in writing in that behalf by the Chief Justice; and
(e) if it is in a language which is not the mother tongue of the accused and that person does not understand the English language and is not represented by a barrister and solicitor or pleader, there shall be annexed to the copy given to him a translation into the language which is his mother tongue or another language which he understands made and certified by an officer of either of the Courts or by some other person authorised in writing in that behalf by the Chief Justice.
(4)
Notwithstanding that a written statement made by any person may be admissible in
a preliminary inquiry by virtue of this section,
the Court before which the
proceedings are held may, of its own motion or on the application of any party
to the proceedings, require
that person to Attend before the District Court and
give evidence.
(5) So much of any
statement as is admitted in evidence by virtue of this section shall, unless the
Court otherwise directs, be read
aloud at the hearing and, where the Court so
directs, an account shall be given orally of so much of any statement as is not
read
aloud, unless all parties consent to his not being
done.
(6) Any, document or object
referred to as an exhibit and identified in a written statement tendered in
evidence under this section
shall be treated as if it had been produced as an
exhibit and identified in court by the maker of the
statement.
(7) Any written
statement admitted as evidence in any preliminary inquiry under the provisions
of this section shall be deemed to
be a
deposition.
ADJOURNMENT
167.
Where, from the absence of witnesses or any other reasonable cause to be
recorded in the proceedings, the District Court considers
it necessary or
advisable, it may adjourn any preliminary inquiry from time to time for not more
than thirty days and may either
commit the accused to prison or release him on
bail:
Provided that, where the
accused is committed to prison, the period of any adjournment shall not exceed
fifteen
days.
PROVISIONS
AS TO TAKING STATEMENT OR EVIDENCE OF ACCUSED
PERSON
168.
(1) If, after the prosecutor has adduced his evidence and closed his case, the
Court considers that on the evidence as it stands
there are sufficient grounds
for committing the accused for trial, it shall satisfy itself that the accused
understands the charge
and shall ask the accused whether he wishes to give
evidence on oath, to make an unsworn oral statement, to tender a written
statement
in accordance with section 166 or to refrain from doing any of these
things. The Court shall also explain to the accused that he
is not bound to give
evidence or to make or tender any statement and that, if he does so, his
evidence or statement may be made part
of the evidence at the trial, if he is
committed for trial.
(2)
Everything which the accused says, either by way of sworn evidence or unsworn
oral statement, shall be recorded
in full
in English and shall be shown or read over
to him, and he shall be at liberty to explain or add to anything contained in
the record
thereof. When the whole is made conformable to what he declares is
the truth, the record shall be attested by the magistrate having
charge of the
proceedings who shall certify that the sworn evidence or the unsworn oral
statement was given, or made, in his presence
and hearing and contains
accurately the whole evidence given or unsworn oral statement made, as the case
may be, by the accused.
The accused shall be required by the Court to sign, or
attest by his mark, such record. If he refuses, the Court shall add a note
of
his refusal and the record may be used as if he had signed or attested
it.
(3) Where the accused tenders
a statement made by him in writing in accordance with section 166 of this Act
the provisions of that
section shall apply mutatis mutandis, with the exception
of those contained in paragraphs (c) and (d) of subsection (2) and in subsection
(4).
EVIDENCE
AND ADDRESS IN
DEFENCE
169.
(1) Immediately after complying with the requirements of section 168 relating to
the evidence or unsworn oral statement of the accused,
and whether the accused
has or has not made or tendered a statement or given evidence, the Court shall
ask him whether he desires
to call any witness on his own behalf or to tender
any written statement by any person other than himself in accordance with
section
166 of this Act.
(2) The
Court shall take the evidence of any witnesses called by the accused or receive
any written statement tendered in accordance
with section 166 of this Act, in
like manner as in the case of the evidence adduced by the prosecutor and that
evidence and statement
shall
be deemed to be
depositions.
(3) If the accused
states that he has any witness to call but that he is not present in court, and
the Court is satisfied that he
absence of that witness is not due to any fault
or neglect of the accused, and that there is a likelihood that he could, if
present,
give material evidence on behalf of the accused, the Court may adjourn
the inquiry in order to enable the evidence of that witness
to be taken or his
statement to be tendered under section 166 of this Act and may issue process, or
take other steps,
to compel the attendance of that
witness.
(4) In any preliminary
inquiry under this Part, the accused, or his barrister and solicitor or pleader
if any, shall be at liberty
to address the Court-
(a) if no witnesses for the defence are to be called and the accused does not give evidence or make or tender any statement, at the close of the prosecutor's case;
(b) if no witnesses for the defence are to be called but the accused gives evidence or makes or tenders a statement, immediately after the evidence or statement of the accused person has been taken or received; or
(c) if the accused calls any witnesses for the defence or tenders the written statements of any witnesses, immediately after the evidence of those witnesses has been taken or their statements received.
(5)
If the accused, or his barrister and solicitor or pleader if any, addresses the
Court in accordance with the provisions of subsection
(4) of this section, the
prosecutor shall have a right to
reply.
COMMITTAL
FOR
TRIAL
170.
(1) If at the conclusion of a preliminary inquiry the District Court considers
the evidence sufficient to put the accused on his
trial, it shall commit him for
trial to the Supreme Court and shall, until the trial, either admit him to bail,
with or without sureties,
or send him to prison for safe custody. The warrant of
the District Court shall be sufficient authority to the Superintendent of
the
prison for his custody until his trial is
completed.
(2) Where a company,
corporation or body corporate is charged with an offence, the Court may, if at
the conclusion of a preliminary
inquiry it considers the evidence sufficient to
put the company, corporation or body corporate on trial, make an order
authorising
the Director of Public Prosecutions to file an information against
it, and for the purposes of this Act any such order shall be deemed
to be a
committal for trial.
(3) Where the
Court commits an accused to the Supreme Court for trial it shall at the time of
doing so ask him whether he intends
to call as witnesses at his trial any
persons other than those whose evidence has been taken, or whose written
statements have been
received, in the course of the preliminary inquiry and, if
so, whether he wishes to give their names and addresses so that they may
be
summoned to attend at the trial, and, if he wishes to do so, the Court shall
write their names and address on the record of the
preliminary
inquiry.
DISCHARGE
OF
ACCUSED
171.
Where, at the close of the case for the prosecution or after receiving any
evidence in defence, the Court considers that the evidence
against the accused
is not sufficient to put him on his trial, it shall forthwith order him to be
discharged as to the charge under
inquiry; but such discharge shall not be a bar
to any subsequent charge in respect of the same
facts:
Provided always that
nothing contained in this section shall prevent the Court from either forthwith,
or after such adjournment of
the inquiry as may seem expedient in the interest
of justice, proceeding to investigate any other charge upon which the accused
person
may have been summoned or otherwise brought before it or which, in the
course of inquiring into the charge so dismissed as aforesaid,
it may appear
that the accused has
committed.
POWER
TO APPLY TO SUPREME COURT FOR COMMITTAL IN CERTAIN CASES WHERE ACCUSED PERSON
DISCHARGED
172.
(1) In any case where the District Court has discharged an accused on a
preliminary inquiry, the Court shall, if required to do so by the Director of
Public Prosecutions, transmit forthwith to him a copy of the record of the
proceedings and, if the Director of
Public Prosecutions on considering the
evidence is of opinion that the accused ought not to have been discharged, it
shall be lawful
for him to apply to a judge of the Supreme Court for an order
that the accused be tried by the Supreme Court and, if the judge considers
that
the evidence, as given before the District Court, was sufficient to put the
accused on his trial, it shall be lawful for him
to order that the accused be
tried by the Supreme Court and, if he thinks fit, to issue a warrant for his
arrest and committal to
prison until his trial or his release on bail; and,
where an order for trial by the Supreme Court is made, the accused shall be
further
prosecuted in the same manner as if he had been committed for trial by
the District Court and for the purposes of the other provisions
of this Act the
District Court shall be deemed to have committed him for
trial.
(2) No order for trial by
the Supreme Court shall be made upon an application under the last preceding
subsection made after the expiry
of six months from the date of
discharge.
(3) The Superintendent
of the prison shall inform any person committed to the prison under the
provisions of this section of his rights
under section 174 of this Act and,
notwithstanding the other provisions of this Act, the District Court shall not
be required so
to inform
him.
SUMMARY
ADJUDICATION
173.
(1) Where, at the close of or during a preliminary inquiry, it appears to the
District Court that the offence charged or, where the
evidence does not support
the charge but discloses some offence other than that charged, any such offence
disclosed is of such a
nature that it may lawfully and suitably be dealt with
under the powers vested in the District Court, it may, subject to the provisions
of section 4 and Part VI of this Act, hear and finally determine the
case.
(2) The power to hear and
finally determine the case conferred on the District Court by the last preceding
subsection shall, in the
event of an offence having been disclosed other than
the offence charged, include the power to draw up and sign a formal charge as
if
a complaint had been made under section 51 of this
Act.
(3) The District Court
dealing with a case under the provisions of this section may act on the evidence
which has already been recorded
before it or may recall all or any of the
witnesses for further
examination:
Provided that in
every case the accused shall be entitled to have recalled for cross-examination,
or further cross-examination, or
for further examination all witnesses whom he
may require to be recalled:
And
provided that the provisions of this section shall not apply to any evidence
received under the provisions of section 166 of this
Act, unless such evidence
could also have been lawfully received under the provisions of section 146 and
the accused, or his barrister
and solicitor or pleader if any, does not object
to the Court acting on
it.
ACCUSED
ENTITLED TO COPY OF
DEPOSITIONS
174.
A person who has been committed for trial to the Supreme Court shall be entitled
at any time before the trial to have a copy of the
depositions on payment of a
fee not exceeding thirty cents for every foolscap page, or part of a page, of
that copy or, if the District
Court thinks fit, without payment. The District
Court shall at the time of committing him for trial inform him of the effect of
this
provision.
TAKING
THE DEPOSITIONS OF PERSONS DANGEROUSLY
ILL
175.
Where it appears to any magistrate that any person dangerously ill or injured is
not likely to recover and is able and willing to
give material evidence relating
to any offence for which, upon conviction by the Supreme Court a sentence of
imprisonment for a term
of five years or more may be imposed, the magistrate
may, whether or not any person has been charged with any offence, take in
writing
the statement on oath or affirmation of that person, and shall sign it
and certify that it contains accurately the whole of the statement
made by that
person, and shall add a statement of his reason for taking it and of the date
and place when and where it was taken,
and shall preserve it and file it for
record.
NOTICE
TO BE
GIVEN
176.
It any statement taken under section 175 relates, or is expected to relate, to
an offence with which any known person has been, or
may be, charged or committed
for trial, reasonable notice of the intention to take the statement shall be
given to that person, or
to his barrister and solicitor or pleader if any, and
to the Director of Public Prosecutions and if that person is in custody he
shall
be brought by the person in whose charge he is, or by another public officer on
his behalf, under an order in writing of the
magistrate, to the place where the
statement is to be taken and shall be notified that, if he wishes, he may have a
barrister and
solicitor or pleader present and may cross-examine the person
making the
statement.
TRANSMISSION
OF
STATEMENTS
177.
Where any statement taken under section 175 of this Act relates to an offence
for which any person is then or subsequently committed
for trial, it shall be
transmitted by the Clerk to the Registrar, and a copy of it shall be transmitted
by the Clerk to the Director
of Public
Prosecutions.
USE
OF STATEMENT IN
EVIDENCE
178.
Any statement taken under section 175 of this Act may afterwards be used in
evidence on the trial of any person accused of an offence
to which it relates,
if the person who made the statement is dead or the Court is satisfied that for
any sufficient cause his attendance
cannot be procured and if reasonable notice
of the intention to take the statement was served upon the person, whether
prosecutor
or accused, against whom it is proposed to be read in evidence, and
he had or might have had, if he had chosen to be present, full
opportunity of
cross-examining the person making
it.
TRANSMISSION
OF RECORDS TO SUPREME COURT AND DIRECTOR OF PUBLIC
PROSECUTIONS
179.
In the event of a committal for trial the charge, the depositions, the evidence
or statement of the accused person, the recognizances
of bail, if any, and any
documents or things which have been put in evidence, shall be transmitted
without delay by the Clerk to
the Registrar, and a copy of the depositions and
statements certified by the Registrar shall be supplied to the Director of
Public
Prosecutions by the
Registrar.
FILING
OF AN
INFORMATION
180.
(1) After the receipt of the certified copy of the depositions and statements,
the Director of Public Prosecutions shall, unless
he enters a nolle prosequi,
draw up and sign an information in accordance with the provisions of this Act
and file it in the registry
of the Supreme
Court.
(2) In any information
under this section the Director of Public Prosecutions may charge the accused
with any offence which, in his
opinion, is disclosed by the depositions either
in addition to, or in substitution for, the offence upon which the accused has
been
committed for
trial.
RETURN
OF DEPOSITIONS FOR TRIAL IN THE DISTRICT
COURT
181.
(1) Where after an information has been filed and prior to the trial, a judge is
of the opinion, upon perusing the depositions, statements
and exhibits, that the
case is one which is within the jurisdiction of, and may suitably be tried in,
the District Court, he may,
of his own motion or upon the application of any
party, cause the depositions, statements and exhibits to be returned to that
Court
and the information to the Director of Public Prosecutions and order that
the accused be tried in the District
Court:
Provided that no order may
be made under the provisions of this subsection until the Director of Public
Prosecutions and the accused
or his barrister and solicitor or pleader, if any,
have been afforded an opportunity by the judge to state to him orally or in
writing
any reasons why such an order should not be
made.
(2) Where an order is made
under the last preceding subsection, the District Court shall forthwith take
such steps as may be necessary
in accordance with the provisions of this Act to
compel the accused to attend before it and shall try him as
directed:
Provided that where the
District Court is constituted for the trial by the same magistrate or
magistrates as presided at the preliminary
inquiry, the provisions of subsection
(3) of section 173 of this Act shall
apply:
And provided further that,
where an accused has been admitted to bail to await his trial, he shall be
deemed to have been bound thereby
to attend before the District
Court.
NOTICE
OF
TRIAL
182.
(1) Where an information has been filed in the registry of the Supreme Court,
the Registrar shall, unless a judge makes an order
under subsection (1) of
section 181 for the depositions, statements and exhibits to be returned to the
District Court-
(a) endorse on, or annex to, every information filed as aforesaid, and every copy thereof delivered to the police officer for its service, a notice of trial, which notice shall specify the particular sitting of the Supreme Court at which the accused is to be tried on that information and shall be in the following form:
"A. B.
Take notice that you will be tried on the information whereof this is a true copy at the sitting of the Supreme Court to be held at ...............on the ............day of ..............19..."; and
(b) deliver or cause to be delivered to the police officer serving the information a copy thereof with the notice of trial endorsed thereon or annexed thereto and, it there are more, accused committed for trial than one, then as many copies as there are such accused;
and
the police officer to whom a copy of the information is so delivered shall, as
soon as possible after having received it and not
less than three days before
the day specified in the notice of trial as the date of the trial, by himself or
some other officer,
deliver to every accused named in the information a copy of
the information and notice and explain to him the nature thereof; and
where any
accused has been admitted to bail and cannot readily be found, he shall leave a
copy of the information and notice of trial
with an adult person normally
residing in the same dwelling-house as the accused for him and, if done such can
be found, shall affix
the copy and notice to the outer or principal door of the
dwelling-house of the
accused:
Provided always that
nothing herein contained shall prevent any person committed for trial and
present in court at the opening of
or during any sitting of the Supreme Court
from being tried thereat, if he shall consent to be so tried and no objection is
made
thereto on the part of the Director of Public
Prosecutions.
RETURN
OF
SERVICE
183.
An officer serving a copy of an information and the notice of trial shall
forthwith make to the Registrar a return of the mode of
service thereof and the
provisions of section 60 of this Act shall apply mutatis mutandis to proof of
the
service.
POSTPONEMENT
OF
TRIAL
184.
It shall be lawful for the Supreme Court or a judge upon the application of the
prosecutor or the accused, if the Court considers
that there is sufficient cause
for the delay, to postpone the trial of any accused person to any subsequent
sitting of the
Court.
INFORMATION
BY DIRECTOR OF PUBLIC
PROSECUTIONS
185.
All informations drawn up in pursuance of section 180 of this Act shall be in
the name of and, subject to the provisions of section
47 of this Act, signed by
the Director of Public
Prosecutions.
FORM
OF
INFORMATION
186.
Every information shall bear the date of the day when it is signed and, with
such modifications as shall be necessary to adapt it
to the circumstances of
each case, shall be in the form prescribed in the Schedule to this
Act.
PART VIII - PROCEDURE IN TRIALS BEFORE THE SUPREME COURT
PRACTICE
OF SUPREME COURT IN ITS CRIMINAL
JURISDICTION
187.
Subject to the express provisions of this Act, the practice of the Supreme Court
in its criminal jurisdiction shall be such as the
Court
directs.
TRIALS
BEFORE SUPREME COURT TO BE BY A JUDGE
ALONE
188.
Trials before the Supreme Court shall be by a judge
alone.
ACCUSED
ABSENT
189.
Where on the day and at the time set for the trial of any information the
accused is not present in court, the Court shall adjourn
the trial and may,
unless the accused is in lawful custody, issue a warrant for him to be arrested
and brought before the
Court:
Provided that where the
information charges more than one person and one or more of those persons is
present in court, the Court may,
in its discretion, either adjourn the trial of
all the accused or proceed with the trial of those of them who are present and
order
that the accused who is absent be tried
separately.
ACCUSED
TO BE CALLED UPON TO
PLEAD
190.
(1) Where the accused is present in court, the substance of the information
shall be stated to him by the Court and he shall be asked
whether he admits or
denies the truth of the
information.
(2) If the accused
admits the truth of the information, his admission shall be recorded as nearly
as possible in the words used by
him or in an English translation of those words
and the prosecutor shall then state the details of the offence
alleged.
(3) If the accused admits
the truth of the details of the offence stated by the prosecutor and they
constitute the offence charged,
the Court shall record a finding that he is
guilty of that offence; if he denies the truth of any of those details, the
Court shall
record that he has pleaded "not
guilty".
(4) Where the Court has
recorded a finding under this section that an accused is guilty of the offence
charged, it shall, after hearing
him, or his barrister and solicitor or pleader
if any, as to any mitigating circumstances and any evidence thereof which may be
advanced,
either convict him and pass sentence on, or make an order against, him
in accordance with the law or, if authorised by any written
law to do so,
discharge him without proceeding to
conviction.
(5) If the accused
does not admit the truth of the information, the Court shall record a plea of
"not guilty" and proceed to hear
the case
as hereinafter provided in this Part of this
Act.
(6) If the accused refuses to
plead, the Court shall record that fact and he shall be deemed not to admit the
truth of the information
and to have pleaded "not
guilty".
(7) Where a company,
corporation or body corporate is charged upon an information with any offence it
may enter a plea by its representative;
and if either the company, corporation
or body corporate does not attend by representative or, though it does so
attend, fails to
enter any plea the Court shall record this fact and the
company, corporation or body corporate shall be deemed to have entered a
plea of
"not guilty".
(8) A representative
for the purposes of this section need not be appointed under the seal of the
company, corporation or body corporate,
and a statement in writing purporting to
be signed by a director, manager, secretary or other principal officer of the
Company, corporation
or body corporate, or by any person, by whatsoever name
called, having, or being one of the persons having, the management of its
affairs, to the effect that the person named in the statement has been appointed
as the representative of the company, corporation
or body corporate for the
purposes of this section shall be admissible without further proof as prima
facie evidence that that person
has been so
appointed.
ORDERS
FOR AMENDMENT OF INFORMATION, SEPARATE TRIAL, AND ADJOURNMENT OF
TRIAL
191.
(1) Every objection to any information for any formal defect on the face thereof
shall be taken immediately after the information
has been read over to the
accused person and not later.
(2)
Where, before a trial by the Supreme Court or at any stage thereof before
judgment, it appears to the Court that the information
is defective, either in
substance or in form, or inappropriate to the facts disclosed by the depositions
or the evidence received
during the trial, the Court may make such order for the
alteration of the information, either by amending the particulars of the
offence
or by substituting a new offence for the offence charged or by deleting any
count or by adding a new count
as the Court thinks necessary to meet the
circumstances of the
case:
Provided that where the
information is altered under the provisions of this section-
(a) the Court shall inform the accused of the substance of the alteration and call upon him to plead to the altered information;
(b) the accused may demand that the witnesses, or any of them, be recalled and give their evidence afresh or be further examined, cross-examined or re-examined by the accused, or his barrister ands solicitor or pleader if any, and, if any witness is recalled, the prosecutor shall have the right to cross-examine any such witness or, as the case may be, to re-examine him on matters arising out of any such further examination or cross-examination.
(3)
Variance between the information and the evidence adduced in support of it with
respect to the date and time at which the alleged
offence was committed or with
respect to the description, value or ownership of any property the subject of
the information is not
material and the information need not be amended for any
such variation, save where the variation is with respect to the date or
time at
which the alleged offence was committed and the proceedings have in fact not
been instituted within any time limited by law
for the institution
thereof.
(4) Where the information
is altered under this section or there is such a variance between the
information and the evidence as is
referred to in the last preceding subsection,
the Court shall, if it is of the opinion that the accused may have been thereby
misled
and that the interests of justice require that the trial be adjourned so
that he may prepare his defence afresh, adjourn the trial
for such period as it
considers necessary for that
purpose.
(5) Where an information
is altered under this section, a note of the order far alteration shall be
endorsed on the information, and
the information shall be treated for the
purposes of all proceedings in connection therewith as having been filed in the
amended
form.
(6) Where an order
of the Court is made for a separate trial under subsection (3) of section
91-
(a) the procedure on the separate trial of a count shall be the same in all respects as if the count had been in a separate information and the procedure on its separate trial shall be the same in all respects as if in respect of that count the trial had not commenced; and
(b) the Court may make such order as to the custody of the accused or his admission to bail and as to the enlargement of recognizances and otherwise as it thinks fit.
(7)
Any power of the Court under this section shall be in addition to and not
derogation of any other power of the Court for the same
or similar
purposes.
QUASHING
OF
INFORMATION
192.
Where any information does not state, and cannot by any alteration authorised by
the last preceding section be made to state, any
offence, it shall be quashed
and the accused shall be
discharged.
PROCEDURE
IN CASE OF PREVIOUS
CONVICTIONS
193.
Where an information contains a count charging an accused person with having
been previously convicted of any offence, the procedure
shall, subject to the
provisions of sub-paragraphs (ii) and (iii) of paragraph (e) of the proviso to
section 106 of this Act, be
as follows:
(a) the part of the information alleging the previous conviction shall not be read out in court nor shall the accused be asked whether he has been previously convicted as alleged in the information, unless and until he has either pleaded guilty to or been convicted of the subsequent offence;
(b) if he pleads guilty to or is convicted of the subsequent offence, he shall then be asked whether he has been previously convicted as alleged in the information; and
(c) if he answers that he has been previously so convicted, the Court may proceed to pass sentence on him accordingly; but, if he denies that he has been previously so convicted or refuses to, or does not, answer such question, the Court and the assessors shall then hear evidence concerning that alleged previous conviction;
Provided,
however, that, if upon the trial for the subsequent offence evidence of the
previous offence is given pursuant to the provisions
of sub-paragraph (ii) or
sub-paragraph (iii) of paragraph (e) of the proviso to section 106 before a
finding is made in respect of
the subsequent offence, the Court shall decide the
issue concerning the previous conviction at the same time that it decides the
issues concerning the subsequent
offence.
PLEA
OF GUILTY TO OTHER
OFFENCE
194.
Where an accused is tried upon an information for any offence and can lawfully
be convicted on the trial of that information of some
other offence not charged
in that information, he may plead not guilty of the offence charged in the
information but guilty of any
such other offence and the provisions of
subsections (2), (3) and (4) of section 190 of this Act shall apply
mutatis
mutandis; and, if the prosecutor
consents, the Court may find the accused guilty of that offence and, it does so,
it shall acquit him of the
offence
charged.
PROCEEDINGS
AFTER PLEA OF "NOT
GUILTY"
195.
If the accused pleads "not guilty", or if a plea of "not guilty" is recorded in
accordance with the provisions of section 190 of
this Act, the Court shall
proceed to try the case. The prosecutor, or the barrister and solicitor or
pleader conducting the prosecution,
shall present the case against the accused
and shall call witnesses and adduce evidence
in support of the
information:
Provided that, if
both the prosecutor and the accused, or their respective barristers and
solicitors or pleaders on their behalf,
consent thereto, the Court may proceed
to try the case in respect of some only of the offences charged in the
information and defer
trying the case in respect of the other offences until
after the completion of the trial of the first-mentioned
offences.
POWER
TO POSTPONE OR ADJOURN
TRIAL
196.
If, from the absence of witnesses, from the exercise of any power of the Court
or from any other reasonable cause to be recorded
in the proceedings, the Court
or a judge considers it necessary or advisable to postpone the commencement of,
or to adjourn, any
trial, it or he may from time to time postpone or adjourn it,
on such terms as it or he thinks fit, for such time as it or he considers
reasonable, and may by warrant remand the accused to prison. During a remand the
Court may at any time order the accused to be brought
before it. The Court may
on a remand admit the accused to
bail.
ADDITIONAL
WITNESSES FOR
PROSECUTION
197.
(1) No witness whose evidence or written statement has not been received at the
preliminary inquiry shall be called by the prosecution
at any trial, unless the
accused or, if he is represented, his barrister and solicitor or pleader has
received reasonable notice
in writing of the intention to call that witness or
the prosecutor has sought to tender in evidence under section 146 of this Act
his written statement and the accused, or his barrister and solicitor or pleader
if any, has served on him a notice objecting to
the statement being tendered in
evidence under that section.
(2) A
notice under this section of the intention to call a witness must state his name
and address and the substance of the evidence
which it is believed that he will
give. The Court shall determine whether the length of notice given was
reasonable, regard being
had to the time when and the circumstances under which
the prosecution became acquainted with the nature of the evidence which the
witness could give and determined to call him as a
witness.
(3) Nothing in this
section shall affect the admission of evidence lawfully tendered at the trial
under the provisions of section
146 of this
Act.
CROSS-EXAMINATION
OF WITNESSES FOR THE
PROSECUTION
198.
The witnesses called for the prosecution shall be subject to cross-examination
by the accused, or his barrister and solicitor or
pleader if any, and to
re-examination by the prosecutor, or the barrister and solicitor or pleader
conducting the prosecution. If
the accused is not represented by a barrister and
solicitor or pleader, the Court shall, at the close of the examination-in-chief
of every such witness, ask the accused whether he wishes to put any questions to
that witness and shall record his
answer.
DEPOSITIONS
MAY BE READ AS EVIDENCE IN CERTAIN
CASES
199.
The deposition of any person who attended and whose deposition was recorded by
the District Court at the preliminary inquiry into
any offence may, if the
conditions hereinafter set out are satisfied, without further proof be read as
evidence at the trial of the
person who was charged with that offence, whether
at the trial he is charged with that offence or with any other offence disclosed
by the depositions. The conditions hereinbefore referred to are the
following:
(a) the deposition must be either-
(i) the deposition of a witness who is proved at the trial to the satisfaction of the judge to be absent from Nauru or dead or insane, or so ill as not to be able to give evidence at the trial, or to be kept out of the way by means of the procurement of the accused or on his behalf, or to be unable to attend for any other sufficient cause; or
(ii) a deposition which both the prosecutor, or the barrister and solicitor or pleader, if any, conducting the prosecution, and the accused, or his barrister and solicitor or pleader if any, consent to being read as evidence; and
(b) the deposition must purport to be signed by the magistrate by whom it purports to have been taken:
Provided
that the provisions of this section shall not have effect in any case in which
it is proved, that the deposition was not
in fact signed by the magistrate by
whom it purports to have been
signed.
EVIDENCE
OR STATEMENT OF ACCUSED AT PRELIMINARY
INQUIRY
200.
The evidence or statement, if any, given or made by the accused and duty
recorded in the preliminary inquiry, and whether signed
by the accused or not,
and any written statement tendered by or on behalf of the accused at the inquiry
may be tendered in evidence
by the prosecutor without further proof thereof,
unless it is proved that the magistrate who is purported to have signed the
statement
or evidence did not
in fact sign
it.
CLOSE OF
CASE FOR
PROSECUTION
201.
Where the evidence of the witnesses for the prosecution has been concluded and
any written statements and depositions properly tendered
in support of the
prosecution case have been admitted, and the evidence or statement, if any, of
the accused taken in the preliminary
inquiry has, if the prosecutor wishes to
tender it, been tendered in evidence, the Court-
(a) if it considers, after hearing, if necessary, any arguments which the prosecutor or the barrister and solicitor or pleader conducting the prosecution and the accused, or his barrister and solicitor or pleader if any, may wish to submit, that a case is not made out against the accused, or anyone of several accused, sufficiently to require him to make a defence in respect of the whole information or any count thereof, shall dismiss the case in respect of, and acquit that accused as to, the whole of the information or that count, as the case may be; but
(b) if it considers that a case is made out against the accused or anyone or more of several accused in respect of any offence charged or any other offence of which he may lawfully be convicted on the trial of that offence, shall inform every such accused of his right to address the Court, either personally or by his barrister and solicitor or pleader, if any, and to give evidence on his own behalf or to make an unsworn statement or to refrain from doing either of these things and to call witnesses, or tender statements under the provisions of section 146, in his defence; and in all cases the Court shall require him, or his barrister and solicitor or pleader if any, to state whether he intends to call any witnesses as to fact other than the accused himself. If the accused says that he does not intend to give evidence or make an unsworn statement or to adduce evidence, then the prosecutor, or the barrister and solicitor or pleader conducting the prosecution, may sum up the case against him. If the accused says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the Court shall call upon him to enter upon his defence.
THE
DEFENCE
202.
The accused, or his barrister and solicitor or pleader if any, may open his
case, stating the facts or law on which he intends to
rely and making such
comments as he thinks necessary on the evidence for the prosecution. The accused
may then give evidence or make
an unsworn statement on his own behalf and he, or
his barrister and solicitor or pleader if any, may examine his witnesses, if
any,
and after their cross-examination, re-examine them, and may tender written
statements in accordance with the provisions of section
146 of this Act. At the
close of the accused's case, he or his barrister and solicitor or pleader if
any, may sum up his
case.
ADDITIONAL
WITNESSES FOR THE
DEFENCE
203.
The accused shall, subject to the provisions of section 148 of this Act, be
allowed to call any witness in attendance who can give
relevant evidence,
whether or not that witness gave evidence at the preliminary inquiry. If he
apprehends that any person whom he
wishes to call as a witness will not attend
the trial voluntarily, he shall be entitled to apply for the issue of process to
compel
his attendance:
Provided
that no accused shall be entitled to any adjournment to secure the attendance of
any witness unless he shows that he could
not have taken earlier steps to
obtain, or by reasonable diligence have obtained, the presence of the
witness.
EVIDENCE
IN
REPLY
204.
If evidence is adduced by the accused, or by his barrister and solicitor or
pleader, in his defence introducing new matter which
the prosecutor, or the
barrister and solicitor or pleader conducting the prosecution, could not
reasonably have foreseen, the Court
may allow the prosecutor, or the barrister
and solicitor or pleader conducting the prosecution, to adduce evidence in reply
to rebut
that
evidence.
CLOSING
ADDRESSES WHERE ACCUSED ADDUCES NO
EVIDENCE
205.
Where no evidence is adduced by or on
behalf of any accused and the Court considers that there is evidence that he
committed any offence
charged in the information or any other offence of which
he can lawfully be convicted on the trial of that offence, the prosecutor,
or
the barrister and solicitor or pleader conducting the prosecution, shall be
entitled to sum up the case against that accused immediately
all the evidence in
the case has been given and the accused, personally or by his barrister and
solicitor or pleader if any, shall
then be entitled to address the Court on his
own
behalf.
CLOSING
ADDRESSES WHERE ACCUSED ADDUCES
EVIDENCE
206.
Where any accused, or his barrister and solicitor or pleader if any adduces any
evidence, other than evidence given by the accused
person himself, he, or his
barrister and solicitor or pleader if any, shall be entitled to sum up the case
for the defence immediately
after all the evidence in the case has been given
and the prosecutor, or the barrister and solicitor or pleader conducting the
prosecution,
shall be entitled to reply and to sum up the case against that
accused.
THE
JUDGMENT
207.
The Court, having received all the evidence adduced by the parties and any other
evidence properly admitted and having heard the
addresses, if any, of the
parties or their barristers and solicitors or pleaders, shall, in respect of
every offence charged in the
information, either -
(a) find the accused guilty of that offence, or of any other offence of which he can lawfully be convicted on the information, and, after making such inquiry as it thinks fit as to the accused's character and after hearing the accused or his barrister and solicitor or pleader, if any, as to any mitigating circumstances, and any evidence thereof which may be adduced, either convict him and pass sentence on, or make an order against him in accordance with the law or, if authorised to do so under any written law, discharge him without proceeding to conviction; or
(b) find him not guilty and acquit him:
Provided
that, where, with the consent of the prosecutor and the accused or of their
respective barristers and solicitors or pleaders
on their behalf, only some of
the offences charged in an information have been tried, the provisions of this
section shall apply
in respect of those offences
only.
POWER TO
RESERVE DECISION ON QUESTION RAISED AT
TRIAL
208.
The Supreme Court may reserve the giving of its final decision on any question
raised at the trial of any person for any offence
and its decision whenever
given shall be deemed to have been given during the sittings in which the trial
was held.
POWER
TO RESERVE DECISION ON QUESTION ARISING IN THE COURSE OF
TRIAL
209.
(1) Where any person has, in a trial before the Supreme Court, been convicted of
an offence, the Judge may reserve for further consideration
any question which
has arisen in the course of the trial and the determination of which would
affect the event of the trial.
(2)
If the judge reserves any such question, the person convicted shall, pending the
decision thereon, be remanded to prison or, if
the judge thinks fit, be admitted
to bail; and upon such further consideration of the question so reserved the
judge may affirm or
quash the conviction and shall be deemed to have done so
during the sittings in which the trial was
held.
OBJECTIONS
CURED BY
VERDICT
210.
No judgment shall be stayed or reserved on the ground of any objection which if
made after the information was read over to the accused,
or during the trial,
might have been cured by the Court, nor for any informality in swearing the
witnesses or any of
them.
EVIDENCE,
ETC., ADMISSIBLE AFTER FINDING OF
GUILT
211.
(1) Where the Court has found any accused guilty, it may, before or after
conviction, receive such evidence
as it thinks fit, in order to inform itself
as to the sentence or order most appropriate to the
case.
(2) Where the Court has
found any accused guilty of any offence, it may, if it thinks fit, with his
consent and the consent of the
prosecutor take into consideration in deciding
what sentence or order is most appropriate in the case any other untried offence
of
a like character which the accused admits having committed; and, where the
accused is convicted of several offences, the Court shall
note on the record of
the proceedings the count in respect of which any such untried offence is taken
into account.
(3) Where under the
provisions of the last preceding subsection any untried offence has been taken
into account by the Court -
(a) the accused shall not be liable to be tried or punished thereafter in any proceedings for that offence or for any other offence constituted entirely by all or any of the facts constituting that offence:
Provided that, where on appeal the accused's conviction for the offence in respect of which the untried offence has been taken into account is quashed, he shall be liable to be tried for that untried offence but evidence of his admission of that offence to the Court, or to any person with a view to his admitting it in order that if might be taken into account in those proceedings, shall not be admissible except at the request, or with the consents of the accused; and
(b) for the purpose of sections 125 and 127 of this Act the accused shall be deemed to have been convicted of that untried offence.
DRAWING
UP OF CONVICTION, SENTENCE OR
ORDER
212.
(1) A conviction, sentence or order under section 190, section 194 or section
207 of this Act shall, if required, be afterwards drawn
up and shall be
certified by the Registrar.
(2) A
copy of a conviction, sentence or order under section 190, section 194 or
section 207 of this Act purporting to be certified
by the Registrar may be
tendered as evidence in any proceedings in which it is relevant and shall prima
facie be proof of that conviction,
sentence or order.
PART IX - SUPPLEMENTARY PROVISIONS
POWER
TO ISSUE DIRECTIONS OF THE NATURE OF HABEAS
CORPUS
213.
(1) The Supreme Court may, where it thinks fit, direct -
(a) that any person within Nauru be brought before the Court to be dealt with according to law;
(b) that any person illegally or improperly detained in public or private custody within Nauru be set at liberty; and
(c) that any prisoner detained in any prison be brought before any Court to be there examined as a witness in any matter pending or to be inquired into in that Court.
(2)
The Chief Justice may from time to time make rules to regulate the procedure in
cases under this
section.
POWER
OF THE SUPREME COURT TO ISSUE
WRITS
214.
(1) The Supreme Court may in the exercise of its criminal jurisdiction issue any
writ which may in similar circumstances for the
time being be issued by the
Crown Court in England.
(2) The
Chief Justice may from time to time make rules to regulate the procedure in
cases under this
section.
PERSONS
BEFORE WHOM AFFIDAVITS MAY BE
SWORN
215.
Affidavits and affirmations to be used before the Supreme Court in proceeding
under this Act may be sworn and affirmed before a judge,
a magistrate, the
Registrar or any of his deputies or any Commissioner for
Oaths.
COPIES
OF
PROCEEDINGS
216.
If any person affected by any judgment or order passed or made in any proceeding
under this Act desires to have a copy of the judgment
or order or of any
deposition at other part of the record, he shall on applying for the copy be
furnished therewith provided he pays
the prescribed fee, unless a judge, a
magistrate or the Registrar for some special reason thinks fit to direct that it
be furnished
free of
cost.
FORMS
217.
Such forms as the Chief Justice may from time to time prescribe by rules, with
such variation as the circumstances of each case may
require, may be used for
the respective purposes therein mentioned and, if used, shall be sufficient. In
the absence of such rules
or of provisions for any form in such rules as are
made, the forms in use at the commencement of this Act may continue to be used
until other provision is made by such
rules.
EXPENSES
OF WITNESSES,
ETC.
218.
Subject to any rules which may be made by the Chief Justice, any Court may order
payment by the Government of the reasonable expenses
of any complainant or
witness attending before that Court for the purposes of any inquiry, trial or
other proceeding under this Act,
and any such payment shall be made from, and be
a charge upon, the Treasury Fund.
PART X - REPEAL, INTERIM PROVISIONS AND SAVINGS
REPEAL
219.
The Judiciary Ordinance 1957-1967 and the Criminal Procedure Ordinance 1957-1966
are hereby
repealed.
CESSATION
OF APPLICATION OF CERTAIN ADOPTED
LAWS
220.
(1) The Criminal Procedure Ordinance of 1889 of the Territory of Papua and those
provisions of the Criminal Code which relate to
the jurisdiction, practice or
procedure of the Courts shall, from the commencement of this Act, cease to apply
to or have effect
in Nauru.
(2)
The Third Schedule of the Laws Repeal and Adopting Ordinance 1922-1967 is
amended by deleting therefrom the Criminal Procedure
Ordinance of
1889.
INTERIM
PROVISIONS
221.
Where before the commencement of this Act any criminal cause has been commenced
in any Court -
(a) if the trial of that cause has not commenced, or if it has commenced before the District Court but that Court has no jurisdiction under this Act to try it, it shall be dealt with by the District Court as though it had been freshly commenced under this Act; and
(b) if the trial of that cause has been commenced in the Supreme Court or is a cause which the District Court has jurisdiction under this Act to try and it has been commenced in the District Court the trial shall be completed by the Court in which it has been commenced, but subject to the provisions of this Act.
SAVINGS
222.
Notwithstanding the provisions of sections 219 and 220 of this Act, every order
of a Court lawfully made, and every summons, warrant
and other process of any
Court lawfully issued, in Nauru in exercise of such Court's criminal
jurisdiction before the commencement
of this Act shall continue to have full
force and effect as though the written law under which it was made or issued
were still in
force in Nauru.
_______
SCHEDULES
(Section 93 and 182)
FORMS RELATING TO INFORMATIONS AND CHARGES
PART I
- TITLES
No. 1 - In the Supreme
Court:
In the Supreme Court of Nauru
The Republic against A. B. (and C.D.)
No.
2 - In the District Court:
In the District Court of Nauru
The Republic against A. B. (and C.D.)
PART
II - INFORMATION
At the sessions
to be held at Yaren on ................ the ............. day of
...............19...
Y. Z.,
Director of Public Prosecutions for the Republic of Nauru (W. X., a public
prosecutor duty authorised by the Director of Public
Prosecutions to prosecute
for the Republic in this behalf) informs the Court that A. B. (and C.D.) did
commit the offence of -
(State the offence alleged and the provision of the written law contravened or, if appropriate, that it is contrary to the common law)
In
that he (they) did on the ............. day of ................... 19...., at
........................... in Nauru (in the territorial
waters of Nauru)
(recite in accordance with the provisions of section 93 of this Act the act or
omission alleged to constitute the
offence).
|
(To be signed)
|
Y.
Z. Director of Public Prosecutions
|
OR
|
W.
X. Public Prosecutor
|
PART
III - CHARGE
A. B. (and C.D.) is
(are) charged that he (they) did commit the offence of -
(State the offence alleged and the provision of the written late contravened or, if appropriate, that it is contrary to the common law)
In
that he (they) did on the ......... day of ..................... 19..., at
...................... in Nauru (in the territorial
waters of Nauru) (recite in
accordance with the provisions of section 93 of this Act the act or omission
alleged to constitute the
offence).
|
(To be signed)
|
S.T.
(State rank of police officer) U.V.
Magistrate |
----------------------------
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