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Nauru Court of Appeal Act 2018


REPUBLIC OF NAURU

NAURU COURT OF APPEAL ACT 2018

______________________________

No. 13 of 2018
______________________________


An Act to establish the Nauru Court of Appeal and for related purposes

Certified: 10th May 2018

Table of Contents

PART 1 – PRELIMINARY
1 Short Title
2 Commencement
3 Definitions


PART 2 – NAURU COURT OF APPEAL
4 The Court
5 General jurisdiction of the Court
6 Sessions of the Court
7 Seal
8 Composition of the Court


PART 3 – APPOINTMENT OF JUSTICES
9 Appointment of Justices of Appeal
10 Justices of Appeal to take oath or affirm
11 Remuneration of Justices of Appeal
12 Seniority of Justices


PART 4 – REGISTRAR AND OTHER STAFF
13 Registrar of the Court of Appeal
14 Duties, powers and jurisdiction of the Registrar
15 Officers of the Court


PART 5 – COURT JUDGMENTS
16 Judgment of Court of Appeal
17 Stay of execution of judgment, decision or order
18 Judgment of the Court enforceable by the Supreme Court


PART 6 – APPEALS IN CIVIL PROCEEDINGS
19 Appeals in civil proceedings
20 Interlocutory Order
21 Procedure for commencing civil appeals
22 Time for appealing
23 Power of the Court in civil appeals
24 Fresh evidence
25 Security for costs
26 Power of the Court of Appeal to strike out appeal for non-compliance
27 Powers of a Justice of Appeal
28 Representation


PART 7 – APPEALS IN CRIMINAL PROCEEDINGS
29 Appeals in criminal proceedings from the original jurisdiction of the Supreme Court
30 Appeals from the appellate jurisdiction of the Supreme Court
31 Appeals from case stated or revisional jurisdiction of the Supreme Court
32 Circumstances when appeal against conviction is allowed
33 Powers of the Court in special cases
34 Suspension of order for restoration or payment of compensation
35 Re-trial
36 Time for appealing
37 Procedure for commencing appeals
38 Presence of appellant for hearing
39 Powers of the Court to adduce fresh evidence
40 Director of Public Prosecutions
41 Cost of appeal
42 Admission of appellant to bail and custody when attending court
43 Powers which may be exercised by a Justice of Appeal
44 Judgment in criminal appeals


PART 8 – RESPONDENT’S NOTICE
45 Respondent’s notice
46 Respondent’s notice to be treated as notice of appeal


PART 9 – REVIEW OF OPINION UNDER ARTICLE 55
47 Review of opinion


PART 10 – MISCELLANEOUS
48 Amendments
49 Adjournments
50 Power to remit proceedings to Supreme Court or District Court
51 Records of proceedings
52 Contempt of court
53 Protection of Justices of Appeal
54 Costs
55 Fees


PART 11 – TRANSITIONAL PROVISIONS
56 Appeals pending in the High Court of Australia
57 Appeals which may filed in the Court of Appeal
58 Repeal


PART 12 – RULES
59 Power to make rules


SCHEDULE


Enacted by the Parliament of Nauru as follows:

PART 1 – PRELIMINARY

  1. Short Title

This Act may be cited as the Nauru Court of Appeal Act 2018.

  1. Commencement

This Act commences on 15 May 2018.

  1. Definitions

In this Act:

‘cause or matter’ includes any appeal, action, suit or other original proceeding in any Court between the person originating the proceeding and one or more other parties as defendant or respondent, and includes any original criminal proceeding;

‘Constitution’ means the Constitution of the Republic of Nauru;

‘Court’ means the Nauru Court of Appeal established by Article 57 of the Constitution unless otherwise stated;

‘criminal proceedings’ includes proceedings under the Crimes Act 2016 and such other offences in any other written law;

‘District Court’ means the District Court formerly established under the Courts Act 1972 and which continues under the District Courts Act 2018;

‘Family Court’ means the Family Court established by the Family Court Act 1973;

‘judgment, decision or order’ includes decrees and not an opinion under Article 55 of the Constitution;

‘Justice of Appeal’ means a Justice of Appeal appointed under this Act;

‘legal representative’ means barrister and solicitor or a pleader duly admitted to practice law under the Legal Practitioners Act 1973 or any other written law;

‘Minister’ means the Minister for Justice and Border Control;

‘offence’ includes a criminal offence under the Crimes Act 2016 and other offences under any written law;

‘President’ means the President of the Republic of Nauru;

‘President of the Court of Appeal’ has the same meaning as provided in Article 57 (5) and (6) of the Constitution;

‘Registrar’ means the Registrar of the Courts;

‘session’ means the sitting of the Court for a specified period;

‘Supreme Court’ means the Supreme Court of Nauru established by Article 48 of the Constitution.

PART 2 – NAURU COURT OF APPEAL

  1. The Court
  2. General jurisdiction of the Court

The Court shall have the power and jurisdiction to hear and determine all appeals which lie to the Court by virtue of the Constitution, this Act or any other written law.

  1. Sessions of the Court
  2. Seal
  3. Composition of the Court

PART 3 – APPOINTMENT OF JUSTICES

  1. Appointment of Justices of Appeal
  2. Justices of Appeal to take oath or affirm

The Justices of Appeal including the President of the Court of Appeal shall before entering office take and subscribe before the President the oath or affirmation set out in the Schedule.

  1. Remuneration of Justices of Appeal 

The Justices of Appeal appointed under section 9 shall receive such remuneration as may be fixed by the President in consultation with the Chief Justice.

  1. Seniority of Justices 

PART 4 – REGISTRAR AND OTHER STAFF

  1. Registrar of the Court of Appeal

The Registrar of the Courts shall be the Registrar of the Nauru Court of Appeal.

  1. Duties, powers and jurisdiction of the Registrar

The duties of the Registrar include:

(a) taking all necessary steps to obtain a hearing date of the appeals or applications;

(b) obtaining and compiling a record of the Supreme Court proceedings of all judge’s notes, transcripts, exhibits and other matters relating to the appeal;

(c) providing necessary directions in relation to the appeals or applications to any parties to the proceedings, officers of the courts, the Chief Corrections Officer and such other officers as he or she thinks fit; and

(d) such other powers and jurisdiction given under this Act, other written law or the rules of the Court.
  1. Officers of the Court

PART 5 – COURT JUDGMENTS

  1. Judgment of Court of Appeal
  2. Stay of execution of judgment, decision or order
  3. Judgment of the Court enforceable by the Supreme Court

A judgment, decision or order of the Court may be enforced by the Supreme Court as if it had been given or made by the Supreme Court.

PART 6 – APPEALS IN CIVIL PROCEEDINGS

  1. Appeals in civil proceedings
  2. Interlocutory Order

A judgment, decision or order which results in the final determination of a civil proceeding despite the application being interlocutory in nature shall not be constituted as an interlocutory order for the purposes of section 19 (3)(f).

  1. Procedure for commencing civil appeals
  2. Time for appealing
  3. Power of the Court in civil appeals
  4. Fresh evidence
  5. Security for costs
  6. Power of the Court of Appeal to strike out appeal for non-compliance

The Court shall not entertain any appeals made under this Part unless the appellant has fulfilled the conditions prescribed by this Act or the rules of the Court.

  1. Powers of a Justice of Appeal

The powers of a Justice of Appeal under this Part are to:

(a) give leave to appeal an interlocutory judgment, decision or order of the Supreme Court;

(b) give leave to appeal an interlocutory judgment, decision or order where leave in the first instance has been refused by the Supreme Court;

(c) extend the time within which a notice of appeal or an application for an appeal may be given;

(d) give directions as to the service of documents;

(e) stay execution of a judgment, decision or order of the Supreme Court;

(f) give leave to amend a notice of appeal or a respondent’s notice;

(g) make orders by consent of the parties;

(h) make orders for costs;

(i) dismiss an appeal for want of prosecution;

(j) give leave to withdraw an appeal on the application of an appellant;

(k) strike out an appeal under section 26;

(l) deliver a reserved judgment of the Court if any or all the Justices of Appeal who heard the appeal are unable to sit to deliver the judgment;

(m) give general directions for the purposes of the appeal; or

(n) any other matters as prescribed under the Act, other written law or the rules of the Court or directions published by the Chief Justice from time to time.
  1. Representation

An appellant or a respondent may be represented in an appeal by a legal representative or may appear in person.

PART 7 – APPEALS IN CRIMINAL PROCEEDINGS

  1. Appeals in criminal proceedings from the original jurisdiction of the Supreme Court
  2. Appeals from the appellate jurisdiction of the Supreme Court
(3) Where the Court determines that a person may not have been properly convicted on some charges but has been properly convicted on some other charges, the Court may in respect of the charges it considers that the appellant has not been properly convicted of, either affirm the sentence passed by the District Court or Supreme Court or pass such other sentence in substitution which it deems proper.

(4) Where the Court determines in an appeal under this section:

(a) that the District Court and the Supreme Court had convicted a person of an offence; and

(b) based on the findings of the District Court or the Supreme Court the Court is satisfied of the facts which proves a person guilty of some other offence charged within the information, -


the Court may instead of allowing or dismissing the appeal, substitute the verdict of the District Court or Supreme Court, enter a conviction for that other offence and pass such sentence in substitution for the sentence passed by the District Court or Supreme Court.


(5) On an appeal under this section, the Court may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred despite some points raised in the appeal might be decided in favour of the appellant.

(6) Where on an appeal against a conviction on an information containing 2 or more counts the Court allows the appeal in respect of part of the information, the Court may in respect of any count for which the appellant remains convicted, pass such sentence in substitution for any sentence passed at the trial as the Court deems fit and authorised by the law for the offence for which the appellant remains convicted.

(7) The Court shall not under subsection (6), pass any sentence such that the appellant’s sentence on the information as a whole will in consequence of the appeal be of greater severity than the sentence taken as a whole which was passed at the trial for all offences of which the appellant was convicted.
  1. Appeals from case stated or revisional jurisdiction of the Supreme Court
  2. Circumstances when appeal against conviction is allowed
  3. Powers of the Court in special cases

the Court may instead of allowing or dismissing the appeal, substitute for the conviction entered by the Supreme Court a conviction of guilty for that other offence and pass such sentence it deems fit in substitution for the sentence passed by the Supreme Court.


(3) On an appeal under this section, the Court may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred notwithstanding that some points raised in the appeal might be decided in favour of the appellant.
  1. Suspension of order for restoration or payment of compensation

the judgment, decision or order shall be stayed:

(i) until the expiration of 30 days from the date of the conviction; or,

(ii) where a notice of appeal or leave to appeal is filed within 30 days after the date of the conviction until the determination of the appeal or the application for leave to appeal.

(2) Where on appeal the judgment, decision or order of the Supreme Court is affirmed by the Court, the Supreme Court judgment, decision or order shall take immediate effect.

(3) Where on appeal the judgment, decision or order of the Supreme Court is reversed or varied, the Court shall make appropriate orders for:

35 Re-trial

(1) Where the Court allows an appeal and does so by reason of evidence received or available to be received by the Court under section 39 and if the interest of justice so require, the Court may order the appellant to be retried.

(2) A person shall not under this section be ordered to be retried for an offence other than:

36 Time for appealing

(1) Where a person convicted and sentenced desires to appeal under this Part, he or she shall file and serve a notice of appeal within 30 days of the date of the delivery of the judgment, decision or order of the Supreme Court.

(2) Where a person convicted and sentenced requires leave to appeal under this Part, he or she shall file and serve a summons for leave to appeal within 14 days of the date of the delivery of the judgment, decision or order of the Supreme Court.

(3) Where a person seeks to appeal the judgement, decision or order of the Supreme Court under section 30, the application for leave shall be filed and served within 21 days of the judgment, decision or order of the Supreme Court.

(4) The time for filing of an appeal or an application for leave to appeal under this section may be extended:

(5) The time for filing an appeal or an application for leave to appeal may be extended by the Supreme Court or the Court under subsection (3) before or after it expires concurrently with the application for leave to appeal under subsection (2).

37 Procedure for commencing appeals

(1) A person who seeks to appeal a judgment, decision or order of the Supreme Court under this Part shall file a notice of appeal in such manner as prescribed by the rules of the Court.

(2) A person who seeks to obtain leave to appeal a judgment, decision or order of the Supreme Court under this Part where leave is required, shall file a summons for leave to appeal in such manner as prescribed by the rules of the Court.

38 Presence of appellant for hearing

(1) Subject to subsection (2), an appellant shall be entitled to be present if he or she wishes to be present on the hearing of the appeal although he or she may be in custody.

(2) A person in custody is not required to be present without the grant of prior leave of the Court to be present for the hearing:

(3) Where an appellant is unrepresented, the Court shall grant leave for the appellant to be present and to make submissions to the Court at any stage of the appeal proceedings.

39 Powers of the Court to adduce fresh evidence

(1) Where the Court deems it fit or expedient in the interest of justice, it may make one or more of the following orders:

(2) The Court shall not increase any sentence by reason of or in consideration of any evidence adduced before it under this section but was not adduced at the trial.

40 Director of Public Prosecutions

The Director of Public Prosecutions is deemed to be a party to any application for leave or appeal in any criminal cause or matter in which the proceedings were instituted and were carried on by a public prosecutor.

  1. Cost of appeal

The Court shall not make any order as to costs on the hearing and determination of an appeal under this Part.

  1. Admission of appellant to bail and custody when attending court
  2. Powers which may be exercised by a Justice of Appeal
  3. Judgment in criminal appeals

PART 8 – RESPONDENT’S NOTICE

  1. Respondent’s notice
  2. Respondent’s notice to be treated as notice of appeal

The provisions relating to a notice of appeal shall also apply to the respondent’s notice with such modifications as necessary.

PART 9 – REVIEW OF OPINION UNDER ARTICLE 55

  1. Review of opinion

PART 10 – MISCELLANEOUS

  1. Amendments
  2. Adjournments
  3. Power to remit proceedings to Supreme Court or District Court

The Court shall have the power and jurisdiction in both civil and criminal appeals to:

(a) remit the proceedings to the Supreme Court or District Court; or

(b) order a new trial in the Supreme Court or District Court.
  1. Records of proceedings
  2. Contempt of court

The Court shall have the same powers as the Supreme Court under section 14 of the Administration of Justice Act 2018 to try and punish any act of contempt of court committed by any person.

  1. Protection of Justices of Appeal
  2. Costs

Subject to section 41, in determining an appeal, the Court shall have the jurisdiction and discretion to award costs to one or more of the parties to the appeal.

  1. Fees

The Chief Justice may by notice in the Gazette prescribe such filing and hearing fees to be paid to the Court for the lodgement and hearing of an appeal.

PART 11 – TRANSITIONAL PROVISIONS

  1. Appeals pending in the High Court of Australia
  2. Appeals which may filed in the Court of Appeal
  3. Repeal

The Appeals Act 1972 is repealed.

PART 12 – RULES

  1. Power to make rules

The Chief Justice may make rules of the Court for carrying this Act into effect and the practice and procedure of the Court.


SCHEDULE

Section 10

OATH

I, .............., swear that, as a Justice of Appeal of the Republic of Nauru, I will be faithful and bear true allegiance to the Republic of Nauru, and that I will obey, observe, uphold and maintain the Constitution and all other laws of the Republic of Nauru; and I solemnly and sincerely undertake that I will defend the rule of law and the rights of the people, and will do justice to all persons without fear, favour or prejudice, in accordance with the Constitution and the law. So help me, God!


AFFIRMATION

I.................................. do solemnly and sincerely and truly declare and affirm that as a Justice of Appeal of the Republic of Nauru, I will be faithful and bear true allegiance to the Republic of Nauru, and that I will obey, observe, uphold and maintain the Constitution and all other laws of the Republic of Nauru; and I solemnly and sincerely undertake that I will defend the rule of law and the rights of the people, and will do justice to all persons without fear, favour or prejudice, in accordance with the Constitution and the law.



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