WESTERN
PACIFIC
THE
WESTERN PACIFIC (COURTS) ORDER IN COUNCIL 1961
COURT
OF APPEAL RULES 1973
ARRANGEMENT
OF RULES
Part
I
Preliminary
RULE
1.
Citation and commencement.
2.
Interpretation.
Part
II
General
3. Constitution of
Court of Appeal.
4. Commencement of
appeals.
5. Appellant confined to
grounds of appeal.
6. Application of
High Court Rules.
7. Application of
practice and procedure in
England.
8. Adjournment of
hearing.
9. Enlargements of
time.
10.
Fees.
11.
Judgments.
12. Appeal from decisions
of Registrar of Court of Appeal.
13.
Taxation of costs.
14.
Service.
15. Sittings in
chambers.
16. Non-compliance with
rules may be waived by Court of Appeal.
Part
III
Civil
Appeals
17. Wrong ruling as to
stamp.
18. Conditions precedent to
appeal.
19. Appeals to be by notice
of motion.
20. Time for
appealing.
21. Leave to appeal
required in interlocutory
matters.
22. Appeal fee and security
for costs.
23. Cross appeals and
respondent's notice.
24. Amendment
of notice of appeal or respondent's
notice.
25. Preparation of
record.
26. Stay of proceedings or
execution.
27. General powers of
Court of Appeal.
28.
Applications.
29. Additional
security and interim orders.
30.
Notice of hearing.
31. Powers of
Court of Appeal as to new
trials.
32. Parties not appearing
may file argument in writing.
33.
Costs and witnesses allowances.
34.
Notification of final determination of civil appeals.
Part
IV
Criminal
Appeals
35. Commencement of
and time of appeal.
36.
Determination of appeals in ordinary
cases.
37. Powers of the Court of
Appeal in special cases.
38.
Suspension of orders for restoration or payment of
compensation.
39. Appeals where fine
is imposed.
40. Judge's discretion
as to custody of exhibits.
41.
Certified copies of record to be sent to Registrar of Court of
Appeal.
42. Abandonment of
appeals.
43. Notice of application
for extension of time for
appealing.
44. Judge's report to
Court of Appeal.
45. No right in
appellant to be present at hearing of
appeal.
46. Legal assistance to
appellant.
47. Costs of
appeal.
48. Supplemental powers of
Court of Appeal.
49. Powers which
may be exercised by a Judge of the Court of
Appeal.
50.
Bail.
51. Duties of Registrar of
Court of Appeal with respect to notices of
appeal.
52. Summary determination of
appeals in certain cases.
53.
Provision of forms of notice of appeal for use of
appellants.
54. Judgments in
criminal appeals.
55. Power to
reserve questions of law for the Court of
Appeal.
56. Notification of final
determination of criminal
appeals.
57. Prerogative of
mercy.
Part
V
Appeals from
High Court in exercise of Appellate Jurisdiction
Division
(a) - Civil Jurisdiction
58. Appeals from High
Court in exercise of its appellate jurisdiction civil
cases.
59. Notice of appeal from
High Court in appellate jurisdiction in civil
cases.
60. Time for appealing from
High Court in appellate jurisdiction in civil
cases.
61. Preparation of record in
appeals from High Court in its appellate
jurisdiction.
62. Stay of
proceedings or execution on appeal from High Court in its appellate
jurisdiction.
Division
(b) - Criminal Jurisdiction
63. Appeals from High
Court in appellate jurisdiction in criminal
cases.
64. Time for appealing from
High Court in appellate jurisdiction in criminal
cases.
65. Record to be sent to
Registrar of Court of Appeal from High Court in appellate jurisdiction in
criminal cases.
66. Reports to Court
of Appeal in appeals from High Court in appellate jurisdiction in criminal
cases.
Part
VI
Transition and
revocation of previous Rules
67.
Transition.
68. Revocation of
previous Rules.
______
COURT
OF APPEAL
RULES
In exercise of the
powers conferred upon the Rules Committee by section 22 of the Western Pacific
(Courts) Order in Council 1961, the following Rules are hereby made with the
concurrence of the President of the Fiji Court of Appeal and the approval of Her
Majesty's High Commissioner for the Western Pacific -
PART
I
Preliminary
Citation
and
commencement.
1.
These Rules may be cited as the Court of Appeal Rules 1973 and shall come into
operation on the
1st
July
1973.
Interpretation.
2.
In these Rules, unless the context otherwise requires -
"advocate"
means a barrister or solicitor acting for an appellant or respondent to an
appeal whether entitled to right of audience before the Court of Appeal or the
High Court, as the case may be;
"appellant"
includes a person who has been convicted and desires to appeal under these
Rules; and where the Attorney General to the Government of any territory is, or
is deemed to be, a party to any proceedings and desires to appeal under these
Rules, includes such Attorney General;
"Court
of Appeal" means the Fiji Court of Appeal;
"decision"
includes any order, judgment or decree;
"Governor"
means the Governor of the Gilbert and Ellice Islands Colony;
"High
Commissioner" means Her Britannic Majesty's High Commissioner for the Western
Pacific;
"High
Court" means the High Court of the Western Pacific;
"record"
means the aggregate of the papers relating to an appeal (including the
pleadings, proceedings, evidence and judgments) proper to be laid before the
Court of Appeal on the hearing of the appeal;
"Registrar
of the High Court", in relation to an appeal, means Registrar of the High Court
in the territory in which the proceedings giving rise to the appeal were
instituted;
"respondent"
includes any person who has been served with notice of appeal or who is entitled
to be so served;
"Senior
Magistrate" means the Senior Magistrate of the Gilbert and Ellice Islands
Colony;
"sentence"
includes any order of a court made on a conviction with reference to the person
convicted;
"territory"
has the meaning assigned to it by section 2 of the Western Pacific (Courts)
Order in Council 1961.
PART
II
General
Constitution
of Court of
Appeal.
3.
The constitution of the Court of Appeal shall be governed by the law for the
time being in force in
Fiji.
Commencement
of
appeals.
4.
Appeals, including applications for extension of time within which to file an
appeal, shall ordinarily be filed with a Registrar of the High
Court.
Appellant
confined to grounds of
appeal.
5.
The appellant shall not, without the leave of the Court of Appeal, urge or be
heard in support of any ground of objection not stated in his notice of appeal,
but the Court of Appeal shall not be confined to the grounds so
stated:
Provided that the
Court of Appeal shall not rest its decision on any ground not stated in the
notice of appeal unless the respondent has had sufficient opportunity of
contesting the case on that ground either in writing or by appearance in person
or by
advocate.
Application
of High Court
Rules.
6.
Subject to these Rules, the Western Pacific High Court (Civil Procedure) Rules
for the time being in force shall apply to proceedings in and before the Court
of Appeal in civil causes or
matters.
Application
of practise and procedure in
England.
7.
Where no other provision is made by these Rules, or by any other enactment, the
jurisdiction, power and authority of the Court of Appeal and the judges thereof
shall be exercised -
(a)
in civil causes or matters, according generally to the course of the practice
and procedure for the time being observed by and before Her Majesty's Court of
Appeal in England; and
(b)
in criminal proceedings, according to the general course of practice and
procedure for the time being observed by and before Her Majesty's Court of
Appeal (Criminal Division) in England.
Adjournment
of
hearing.
8.
If for any reason it appears to the Court of Appeal right to adjourn an appeal,
the Court of Appeal shall have full power to do so upon such terms and for such
times as to it shall seem
fit.
Enlargements
of
time.
9.
The Court of Appeal, or a judge thereof, or a judge of the High Court, or, in
the case of the Gilbert and Ellice Islands Colony, a judge of the High Court or
the Senior Magistrate, may enlarge the time prescribed by the Rules for the
doing of anything to which these Rules
apply.
Fees
(First
Schedule).
10.
(1) The fees prescribed in the First Schedule shall be the fees payable in
respect of civil proceedings in the Court of
Appeal.
(2) No fees shall be
payable in criminal proceedings in the Court of
Appeal.
Judgments.
11.
Upon the final determination of an appeal the Registrar of the Court of Appeal
shall, as soon as may be, transmit to the Registrar of the High Court a
certified copy of the judgment of the Court of
Appeal.
Appeal
from decisions of Registrar of Court of
Appeal.
12.
Any person aggrieved by anything done or ordered by the Registrar of the Court
of Appeal, other than anything done or ordered under the direction of the
President of the Court of Appeal, may apply to have the act, order or ruling
complained of set aside to a judge of the Court of Appeal who may give such
directions or make such orders thereon as he shall think fit; and every such
application shall be made by notice of motion supported by
affidavit.
Taxation
of
costs.
13.
The Registrar of the Court of Appeal shall be the taxing
officer.
Service.
14.
(1) Service, where required by these rules, shall be effected by the Registrar
of the High Court in accordance with the rules prescribed therefore by the
Western Pacific High Court (Civil Procedure) Rules; any document requiring to be
so served may be forwarded by registered post by the Registrar of the Court of
Appeal to the Registrar of the High
Court.
Provided that in the
event of the party or person to be served, or his representative for acceptance
of service, being in Fiji or elsewhere beyond the jurisdiction of the High
Court, service shall be effected in the same manner as is prescribed for service
of process by the Supreme Court of
Fiji.
(2) The Registrar of the
Court of Appeal may require any party on behalf of whom service is required to
provide as a condition of such service, such number of copies as he may require
for service and filing.
(3)
Notwithstanding anything hereinbefore contained, the Court of Appeal or any
judge thereof may, in any case, make such orders and give such directions to
service as may be
required.
Sittings
in
chambers.
15.
Except in proceedings involving the decision of an appeal, the Court of Appeal
or a judge thereof may sit and act in
chambers.
Non-compliance
with rules may be waived by the Court of
Appeal.
16.
(1) Non-compliance on the part of an appellant or respondent in any proceeding,
whether civil or criminal with any of the provisions of these Rules shall not
prevent the further prosecution of the appeal or response if the Court of Appeal
or a judge thereof considers that such non-compliance was not wilful and that
the same may be waived or remedied by amendment or otherwise; and the Court of
Appeal or a judge thereof may in such manner as it or he thinks fit direct such
appellant or respondent, as the case may be, to remedy such non-compliance, and
thereupon the appeal or the response shall
proceed.
(2) Any direction
given pursuant to the provisions of paragraph (1) shall be communicated, as soon
as may be, by the Registrar of the Court of Appeal to any party concerned who
was not present or represented when the direction was given in the manner
prescribed by rule 14.
PART
III
Civil
Appeals.
Wrong
ruling as to
stamp.
17.
The Court of Appeal shall not grant a new trial or reverse any decision by
reason of any ruling of the High Court that the stamp upon any document or
instrument is sufficient or that the document or instrument does not require to
be
stamped.
Conditions
precedent to
appeal.
18.
Subject to the provisions of rule 16, the Court of Appeal shall not entertain
any appeal made under the provisions of this Part unless the appellant has
fulfilled all of the conditions of appeal as hereinafter set
out:
Provided that,
notwithstanding the generality of the foregoing, the Court of Appeal may in its
discretion for cause shown entertain an appeal under the provisions of this Part
upon any terms it may consider
just.
Notice
of
appeal.
19.
(1) An appeal to the Court of Appeal shall be by way of rehearing and shall be
brought by notice of motion (in these Rules referred to as "notice of
appeal").
(2) Notice of appeal
may be given either in respect of the whole or in respect of any specified part
of the decision of the Court
below.
(3) In addition to
complying with rule 5, every notice of appeal shall specify the precise form of
the order which the appellant proposes to ask the Court of Appeal to
make.
(4) Every notice of
appeal shall be filed with the Registrar of the High Court who shall
-
(a)
cause a copy thereof to be served, as soon as may be, upon every person directly
effected by the appeal; and
(b)
forward the original notice to the Registrar of the Court of
Appeal.
(5) For the purpose of
service under paragraph (4), the Registrar of the High Court may require the
appellant, as a condition precedent to filing, to provide such number of copies
of the notice of appeal as may be required for service and
filing.
Time
for
appealing.
20.
Except where by Ordinance otherwise provided and subject to rule 21, any notice
of appeal, whether from an interlocutory or final decision of the High Court,
shall be filed with the Registrar of the High Court within thirty days after the
decision complained of, calculated from the date on which the judgment or order
of the High Court was signed, entered or otherwise
perfected.
Leave
to appeal required in interlocutory
matters.
21.
(1) No notice of appeal against any interlocutory order of the High Court,
whether made at first instance or in exercise of its appellate jurisdiction, in
any civil case or matter shall be filed unless leave to appeal has first been
obtained from a judge of the High Court, or in the case of the Gilbert and
Ellice Islands Colony, a judge of the High Court or the Senior Magistrate, or,
if such leave be refused, from the Court of
Appeal.
(2) Every application
for leave to appeal under this rule shall be by summons in chambers to be filed
with the Registrar of the High Court or with the Registrar of the Court of
Appeal, as the case may be, within the period prescribed in rule 20 for the
filing of notice of
appeal:
Provided that upon the
filing of an application for leave to appeal time within which, if leave be
granted, the notice of appeal shall be filed shall be extended by such period as
a judge of the High Court, the Senior Magistrate, or a judge of the Court of
Appeal, as the case may be, shall consider appropriate having regard to all the
circumstances.
Appeal
fee and security for
costs.
22.
(1) The appellant shall -
(a)
forthwith upon the filing of any notice of appeal, pay to the Registrar of the
High Court the fee prescribed for the filing of such notice; and
(b)
upon request of the said Registrar made at any time after the filing of the
notice of appeal -
(i)
deposit with the Registrar such sum as the Registrar shall assess as the
probable expenses of the preparation, certification and copying of the record;
and
(ii)
deposit such further sum, or give security therefore to the satisfaction of the
Registrar, as the Registrar may fix as security for the prosecution of the
appeal and for the payment of all such costs as may be ordered to be paid by the
appellant.
(2) In the event of
non-compliance with the provisions of paragraph (1), or in the event of any
security required to be given not being given, or being given in part only,
within the time directed or within such extended time as may be allowed in
accordance with rule 9, all proceedings in the appeal shall be stayed, unless
the Court of Appeal shall otherwise order, and the appeal shall be listed for
the next sessions of the Court of Appeal for a formal order of
dismissal.
Cross
appeals and respondent's
notice.
23.
(1) A respondent who, not having appealed from the decision of the High Court
desires to contend on the appeal that the decision of that court ought to be
varied, either in any event or in the event of the appeal being allowed in whole
or in part, shall give notice to that effect to the Registrar of the High Court,
specifying the grounds for that contention and the precise form of order which
he proposes to ask the Court of Appeal to make, or to make in that event, as the
case may be.
(2) A respondent
who wishes to contend on the appeal that the decision of the High Court should
be affirmed on grounds other than those relied upon by that court shall give
notice to that effect to the Registrar of the High Court specifying the grounds
for that contention.
(3)
Except with the leave of the Court of Appeal, a respondent shall not be entitled
on the hearing of an appeal to contend that the decision of the High Court
should be varied upon grounds not specified in a notice given under this rule,
to apply for any relief not so specified or to support the decision of the High
Court upon any ground not relied upon by that court or specified in such
notice.
(4) Any notice given
by a respondent under this rule (in these Rules referred to as a "respondent's
notice") shall be filed with the Registrar of the High Court within twenty one
days after service upon him of the notice of appeal, and such Registrar shall as
soon as may be upon payment of the prescribed fee cause a copy thereof to be
served upon all parties directly affected by the contentions of such
respondent.
(5) For the
purposes of service under paragraph (4), the Registrar of the High Court may, as
a condition precedent to service, require the respondent to provide such number
of copies of the respondent's notice as he may require for the purpose of
service and
filing.
Amendment
of notice of appeal or respondent's
notice.
24.
A notice of appeal or a respondent's notice may be amended at any time by or
with the leave of the Court of Appeal, upon such terms as the Court of Appeal
may consider
just.
Preparation
of
record.
25.
(1) The Registrar of the High Court shall be responsible for the preparation of
the record; and such Registrar may in his discretion exclude from the record all
documents (more particularly such as are purely formal) that are not relevant to
the subject matter of the appeal, and generally reduce the bulk of the record as
far as may be practicable, taking especial care to avoid the duplication of
documents and the unnecessary repetition of headings and other merely formal
parts of documents:
Provided
that the documents omitted to be copied shall be enumerated in a list to be
placed after the index to or at the end of the
record.
(2) After completion
of the preparation of the record the Registrar of the High Court shall cause one
copy thereof to be made which he shall certify under his hand and the seal of
the High Court to be a true copy of the original record and five copies thereof,
which shall not be so certified, and shall forward the same to the Registrar of
the Court of Appeal; and except by order of the Court of Appeal or a judge
thereof or of a judge of the High Court no original document shall be
transmitted to the Registrar of the Court of
Appeal.
(3) The Registrar of
the High Court shall on application by any party to an appeal and at the cost of
such party provide him with a copy of the record prepared for the appeal or any
part thereof.
(4) Subject to
the provisions of paragraph (3), the cost of the preparation, copying and
certification of the record for the appeal shall be borne by the appellant as
costs in the
appeal.
Stay
of proceedings or
execution.
26.
(1) Except so far as the Court of Appeal or a judge thereof, or a judge of the
High Court, or in the case of the Gilbert and Ellice Islands Colony the Senior
Magistrate thereof, may direct -
(a)
an appeal shall not operate as a stay of execution or of any proceedings
pursuant to any decision of the High Court; and
(b)
no intermediate act or proceeding shall be invalidated by an
appeal.
(2) On any appeal,
interest for such time as execution has been delayed by an appeal shall be
allowed unless the Court of Appeal otherwise
orders.
General
powers of Court of
Appeal.
27.
(1) In relation to an appeal, the Court of Appeal shall have all of the powers
and duties as to amendment, extension of time or otherwise as has the High
Court.
(2) The Court of Appeal
shall have full discretionary power to receive further evidence upon questions
of fact, either by oral examination in court, by affidavit or by deposition
taken before an examiner or
commissioner:
Provided that in
the case of an appeal from a judgment after trial or hearing of any cause or
matter on the merits, no such further evidence (other than evidence as to
matters which have occurred after the date of the trial or hearing) shall be
admitted except on special
grounds.
(3) The Court of
Appeal shall have power to draw inferences of fact and to give any judgment or
make any order which ought to have been given or made, and to make such further
or other orders as the case may
require.
(4) The powers of the
Court of Appeal under the foregoing provisions of this rule may be exercised
notwithstanding that no notice of appeal or respondent's notice has been given
in respect of any particular part of the decision of the High Court or by any
particular party to the proceedings in that court, or that any ground for
allowing the appeal or for affirming or varying the decision of that court is
not specified in such a notice; and the Court of Appeal may make any order, on
such terms as it may think just, to ensure the determination on the merits of
the real question in controversy between the
parties.
(5) The powers of the
Court of Appeal in respect of an appeal shall not be restricted by reason of any
interlocutory order from which there has been no
appeal.
Applications.
28.
Any application to a judge of the High Court or in the case of the Gilbert and
Ellice Islands Colony, the Senior Magistrate, or to a judge of the Court of
Appeal shall be by summons in chambers and subject to such directions in
relation thereto as such judge or the Senior Magistrate may think fit to
issue.
Additional
security and interim
orders.
29.
The Court of Appeal may, in its discretion, require security for the costs of
any appeal or for the performance of any orders to be made on or in relation to
any appeal in addition to such security for costs as may have been required
under rule
22.
Notice
of
hearing.
30.
The Registrar of the Court of Appeal shall, upon obtaining the directions of the
President thereof, cause notice of the date of the hearing of any appeal to be
served upon the parties to the appeal in accordance with these
rules:
Provided that in the
event of an appellant or respondent being present in person in Fiji or
represented in Fiji by an advocate, or being outside the jurisdiction of the
High Court, the Registrar of the Court of Appeal may, in his discretion, serve
notice of the date of the hearing directly upon that party or upon his
advocate.
Powers
of Court of Appeal as to new
trials.
31.
(1) If upon the hearing of an appeal it shall appear to the Court of Appeal that
a new trial ought to be had, it shall be lawful for that court, if it thinks
fit, to order that the decision of the High Court be set aside and that a new
trial shall be had.
(2) A new
trial shall not be ordered on the ground of improper admission or rejection of
evidence unless in the opinion of the Court of Appeal some substantial wrong or
miscarriage of justice has thereby been
occasioned.
(3) A new trial
may be ordered on any question without interfering with the finding or decision
on any other question; and if it appears to the Court of Appeal that any such
wrong or miscarriage as is referred to in paragraph (2) affects part only of the
matter in question, or one or some only of the parties, the Court of Appeal may
order a new trial as to that part only, or as to that party or those parties
only, and give final judgment as to the
remainder.
Parties
not appearing may file argument in
writing.
32.
(1) An appellant may embody in a record of appeal a statement that he does not
intend to appear personally or by representation at the hearing together with a
statement in writing of his arguments in support of the appeal; and in such
event it shall not be necessary for him to attend or be represented at the
hearing unless the Court of Appeal shall so order and the Court of Appeal shall
have regard to such arguments.
(2) Subject to the provisions
of paragraph (1), if, on any day fixed for the hearing of an appeal, the
appellant does not appear in person or by representation, the appeal may be
dismissed.
(3) If the
appellant appears, and any respondent fails to appear, either in person or by
representation, the appeal shall proceed in the absence of such respondent,
unless the Court of Appeal for sufficient reason sees fit to adjourn the hearing
thereof.
(4) In answer to any
appeal, a respondent may, instead of appearing in person or by representation
before the Court of Appeal, file with the Registrar of the High Court not less
than fourteen days before the date fixed for the hearing of the appeal, a
statement to the effect that he does not intend to appear in person or by
representation at the hearing together with a statement in writing of his
arguments in answer to the appeal; and the Registrar of the High Court shall
forward the same to the Registrar of the Court of Appeal and shall cause a copy
thereof to be served upon the appellant, or his advocate, if any, and on every
other respondent, or his advocate, if any, and in such event the Court of Appeal
shall have regard to such
arguments.
(5) Where any
argument in writing is advanced pursuant to the provisions of paragraph (1) or
(4) there shall be no right of reply in any opposing party, but the Court of
Appeal may in its discretion call upon any party to the appeal to submit
original or further argument in writing within such time as the Court of Appeal
may direct.
(6) Where any
appeal is dismissed or allowed under the provisions of paragraph (2) or (3) the
party who was absent may apply, within thirty days after the communication to
him of the dismissal or allowance of the appeal, to the Court of Appeal for the
rehearing of the appeal and where it is shown that there was sufficient reason
for the absence of such party the Court of Appeal may, in its discretion, order
that the appeal be restored for hearing upon such terms as to costs or otherwise
as the Court of Appeal shall think
fit.
(7) Notwithstanding
anything contained in rule 15, where any decision of the Court of Appeal is made
in the absence of all parties to the appeal, it shall not be necessary for the
judgment of the Court of Appeal to be delivered in open court but it shall be
sufficient if the judgment be reduced to writing and a copy thereof served upon
each of the parties to the appeal or his advocate, if
any.
(8) The provisions of
this rule shall apply
mutatis
mutandis to the hearing of any cross
appeal.
Costs
and witnesses
allowances.
33.
(1) Costs allowed in the Court of Appeal shall be taxable according to the
scales for the time being in force in the Court of
Appeal.
(2) The allowance for
witnesses before the Court of Appeal shall be according to the scales for the
time being in force in the Court of
Appeal.
Notification
of final determination of civil
appeals.
34.
(1) On the final determination of an appeal, or the determination of any
interlocutory application, under this Part, the Registrar of the Court of Appeal
shall -
(a)
notify the Registrar of the High Court of the decision of the Court of Appeal
and also any orders or directions made or given by the Court of Appeal in
relation to the appeal or to any matter connected therewith, in such manner,
having regard to the urgency thereof, as he considers most convenient;
and
(b)
In any event send to the Registrar of the High Court one certified copy of the
judgment of the Court of Appeal.
(2) Except where any
party to an appeal was legally represented at the appeal or was himself present
in person at the hearing of the appeal and at the delivery of judgment in the
same, the Registrar of the High Court shall, upon receipt of notice of the
result of the appeal from the Registrar of the Court of Appeal, notify each of
the parties to the appeal in accordance with the notification so
received.
PART
IV
Criminal
Appeals
Commencement
of and time of
appeal.
(Second
Schedule Form
1)
35.
A person desiring, under the provisions of this Part, to appeal to the Court of
Appeal shall commence his appeal by sending to the Registrar of the Court of
Appeal through the Registrar of the High Court a notice of appeal in Form I of
the Second Schedule stating the grounds of his appeal within thirty days after
the date of the conviction or
order.
Determination
of appeals in ordinary
cases.
36.
(1) On any appeal against conviction to the Court of Appeal, the Court of Appeal
shall allow the appeal if it thinks that the conviction should be set aside on
the ground that it is unreasonable or cannot be supported having regard to the
evidence or that the judgment of the court before which the appellant was
convicted should be set aside on the ground of a wrong decision on any question
of law or that on any ground there was a miscarriage of justice and in any other
case shall dismiss the
appeal:
Provided that the
Court of Appeal may notwithstanding that it is of the opinion that the point
raised in the appeal might be decided in favour of the appellant, dismiss the
appeal if it considers that no substantial miscarriage of justice has actually
occurred.
(2) Subject to the
special provisions of these Rules, the Court of Appeal shall, if it allows an
appeal against a conviction, either quash the conviction and direct that an
acquittal be entered, or, if the interests of justice so require, order a new
trial.
(3) On an appeal
against sentence, the Court of Appeal shall, if it thinks that a different
sentence ought to have been passed, quash the sentence passed at the trial and
pass such other sentence warranted in law (whether more or less severe) in
substitution therefore as it thinks ought to have been passed, and in any other
case it shall dismiss the appeal, or make such other order as it thinks
fit.
Powers
of the Court of Appeal in special
cases.
37.
(1) If it appears to the Court of Appeal that an appellant, though not properly
convicted on some count or part of the information has been properly convicted
on some other count or other part of the information, it may either affirm the
sentence passed on the appellant at the trial, or pass such sentence in
substitution therefore as it thinks proper and as may be warranted in law by the
conviction on the count or the part of the information in respect of which it
considers that the appellant has been properly
convicted.
(2) Where an
appellant has been convicted of an offence and the High Court could on the
information have found the appellant guilty of some other offence, and on the
finding of the High Court it appears to the Court of Appeal that the High Court
must have been satisfied of the facts which proved the appellant guilty of that
other offence, the Court of Appeal may, instead of allowing or dismissing the
appeal, substitute for the conviction entered by the High Court a conviction in
respect of that other offence and may pass such sentence in substitution for the
sentence passed at the trial as may be warranted in law for that other offence,
not being a sentence of greater
severity.
(3) If on an appeal
it appears to the Court of Appeal that, although the appellant was guilty of the
act or omission charged against him, he was insane at the time when the act was
committed or the omission made so as not to be responsible according to law for
his actions, the Court of Appeal may quash the sentence passed at the trial and
order the appellant to be kept in custody as a criminal lunatic in such place
and in such manner as it shall direct until the pleasure of the High
Commissioner or the Governor, as the case may be, be known; and the High
Commissioner, or the Governor, may thereupon, and from time to time, give such
order for the safe custody of the appellant during pleasure in such place and in
such manner as to him seem
fit.
Suspension
of orders for restoration or payment of
compensation.
38.-(1)
The operation of any order made by the High Court, in any criminal case, for the
payment of compensation or of any of the expenses of the prosecution or for the
restoration of any property to any person and the operation of the provisions of
any law revesting in case of any conviction in the original owner or his
personal representative the property in stolen goods (unless the judge of the
High Court by whom the conviction is entered directs to the contrary in any case
in which in his opinion the title to such property is not in dispute) shall be
suspended -
(a)
in any case until the expiration of thirty days after the date of the conviction
or order, as the case may be; and
(b)
in cases in which notice of appeal is given within thirty days after such date,
until the determination of the appeal;
and in cases where the
operation of any such order or provisions is suspended until the determination
of the appeal, the order or provisions shall not take effect as to the property
in question if the conviction is quashed on the appeal unless the Court of
Appeal shall otherwise
direct.
(2) The Court of
Appeal may by order annul or vary any order made at the trial for the payment of
compensation or of any of the expenses of the prosecution or for the restitution
of any property to any person, although the conviction is not quashed; and the
order, if annulled, shall not take effect, and, if varied, shall take effect as
so varied:
Provided that
before the Court of Appeal shall make any order under this paragraph, any person
who may be adversely affected thereby shall be given opportunity to be heard by
the Court of Appeal either in person or by representation or by submission in
writing addressed to the Registrar of the Court of
Appeal.
Appeals
where fine is
imposed.
39.
(1) Where a person has, on his conviction, been sentenced to payment of a fine,
and in default of payment to imprisonment, the person lawfully authorise to
receive such fine shall on receiving the same retain it until the determination
of any appeal in relation
thereto.
(2) If any person so
sentenced remains in custody in default of payment of the fine, he shall be
deemed for all purposes of these Rules, to be a person sentenced to
imprisonment.
(Second
Schedule Form 8)
(3) Where any
person has been convicted and is thereupon sentenced to the payment of a fine,
and, in default of such payment, to imprisonment, and he intimates to a judge of
the High Court or, in the case of the Gilbert and Ellice Islands Colony to a
judge of the High Court or to the Senior Magistrate of the Colony, that he
intends to appeal against his conviction the judge of the High Court or the
Senior Magistrate, as the case may be, may, if he thinks right so to do, order
such person to enter into a recognizance in Form 8 of the Second Schedule in
such amount and with or without sureties in such amount as the judge or the
Senior Magistrate may think right, to prosecute the appeal, and subject thereto,
may order that the payment of the said fine shall be made at the final
determination of the appeal if the same be
dismissed.
(4) An appellant
who has been sentenced to the payment of a fine and who has paid the same in
accordance with such sentence shall in the event of his appeal being successful
be entitled, subject to any order of the Court of Appeal, to the refund of the
sum or any part thereof paid by
him.
(Second
Schedule Forms 9 and 10)
(5)
If an appeal is dismissed any appellant to whom paragraph (3) applies shall
forthwith on receipt of notice of the result of the appeal abide by the judgment
of the Court of Appeal; and if the appellant shall fail so to do the Registrar
of the High Court shall report such omission to a judge of the High Court, or in
the case of the Gilbert and Ellice Islands Colony to a judge of the High Court
or to the Senior Magistrate of the Colony, and such judge or Senior Magistrate
may summon the appellant and his sureties, if any, before him and may order the
recognizance of the appellant and those of his sureties to be estreated and may
issue a warrant for the apprehension of the appellant and may commit him to
prison on default of payment of the fine or make such other order as may be
necessary to enforce the order of the Court of
Appeal.
(6) Any recognizance
taken under the provisions of this rule may be taken before a judge or Registrar
of the High Court or any
magistrate.
Judges'
discretion as to custody of
exhibits.
40.
(1) Unless the judge of the court
of trial otherwise directs, any exhibits produced at a trial before the High
Court shall be retained in the custody of that court for thirty days after the
conclusion of the trial pending the possibility of an appeal therein and there
after, or, in the event of an appeal, on the final determination of the appeal,
shall be returned to the parson producing the
same.
(2) The Registrar of the
High Court shall keep a record of any order made by the trial judge thereof
under this
rule.
Certified
copies of record to be sent to Registrar of Court of
Appeal.
41.
When the Registrar of the High Court has received a notice of appeal or when the
High Commissioner or the Governor has exercised his powers under rule 57, the
Registrar of the High Court shall prepare six copies of the record of the trial
in question and shall certify each under his hand and the seal of the High Court
as true copies of the original record and shall forward them to the Registrar of
the Court of Appeal together with sufficient copies of the notice of appeal
(except where the High Commissioner or the Governor has exercised his powers
under rule 57) and any warrant of imprisonment or recognizance of bail or other
process of the trial court which may be relevant to the appeal; but except by
order of the Court of Appeal or of a judge thereof or of a judge of the High
Court, or in the case of the Gilbert and Ellice Islands Colony the Senior
Magistrate thereof, no original document shall be transmitted to the Registrar
of the Court of
Appeal.
Abandonment
of
Appeals.
(Second
Schedule Form
2)
42.
An appellant may at any time, after he has filed a notice of appeal, or made
application for extension of time within which to appeal, abandon the appeal by
giving notice thereof in Form 2 of the Second Schedule to the Registrar of the
Court of Appeal through the Registrar of the High Court and upon such notice
being given the appeal shall be deemed to have been dismissed by the Court of
Appeal.
Notice
of application for extension of time for
appealing.
(Second
Schedule Form
11)
43.
An application to a judge of the High Court, or in the case of the Gilbert and
Ellice Islands Colony to a judge of the High Court or to the Senior Magistrate
of the Colony, for an extension of time within which notice of appeal may be
given shall be in Form 11of the Second Schedule and shall be sent to the
Registrar of the High Court together with a notice of appeal appropriate to the
ground or grounds upon which the applicant desires to question the conviction or
sentence or other order, as the case may
be.
Judge's
report to Court of
Appeal.
44.
(1) The Registrar of the Court of Appeal shall, whenever in relation to any
appeal under this Part the Court of Appeal or a judge thereof directs him so to
do, request the judge of the High Court before whom the appellant was convicted
or sentenced, as the case may be, to furnish him with a report in writing giving
his opinion upon the case generally or upon any point arising upon the case of
the appellant, and the judge of the High Court shall furnish such report to the
Registrar of the Court of Appeal as so
requested.
(2) The report of a
judge of the High Court under this rule shall be a report to the Court of Appeal
and, except by leave of that court or a judge thereof, the Registrar of the
Court of Appeal shall not furnish the report or any part thereof or disclose any
part of the contents thereof to any
person.
No
right in appellant to be present at hearing of
appeal.
45.
(1) An appellant under this Part, other than an appellant who has been sentenced
to the payment of a fine and has entered into a recognizance under rule 39 and
an appellant who, having been sentenced to the payment of a fine, has paid such
fine, shall not be entitled to be present in person at any proceedings relating
to his appeal before the Court of
Appeal.
(2) An appellant who
has been sentenced to the payment of a fine and has either paid such fine or has
entered into a recognizance under rule 39 may, at his own expense and on prior
notification in writing to the Registrar of the Court of Appeal and the
Registrar of the High Court of his desire, be present in person at the hearing
of his appeal, but nothing herein shall prevent the Court of Appeal from
considering the appeal in his absence should it think fit so to
do.
(3) The power of the Court
of Appeal to pass sentence under these Rules may be exercised notwithstanding
that the appellant is not
present.
Legal
assistance to
appellant.
46.
The Court of Appeal or a judge thereof may at any time assign counsel to the
appellant in any appeal under this Part in which it appears desirable in the
interests of justice that the appellant should have legal aid, and that he has
not sufficient means to enable him to obtain that
aid.
Costs
of
appeal.
47.
On the hearing and determination of any appeal under this Part no costs shall be
allowed to either
side.
Supplemental
powers of Court of
Appeal.
48.
In exercise of its jurisdiction under this Part the Court of Appeal may if it
thinks it necessary or expedient in the interests of justice
-
(a)
order the production of any document, exhibit, or other thing connected with the
proceedings, the production of which appears to the Court of Appeal to be
necessary for the determination of the appeal; and
(b)
receive the evidence on deposition of any witnesses, whether they were or were
not called at the trial, to be taken in such manner as the Court of Appeal may
direct by any person appointed by that Court for that purpose; and
(c)
where any question arising in an appeal involves prolonged examination of
documents or accounts or any scientific or local investigation which cannot in
the opinion of the Court conveniently be conducted before the Court of Appeal,
order the reference of the question, in such manner as that court may direct,
for inquiry and report to a special commissioner to be appointed by the Court
and the Court may act upon the report of such commissioner so far as it thinks
fit to adopt it; and
(d)
appoint any person with special knowledge to act as an assessor to the Court of
Appeal in any case where it appears to the Court that such special knowledge is
required for the proper determination of the appeal;
and may exercise in
relation to the proceedings any other powers which for the time being be
exercised by the Court of Appeal on appeals in civil matters and may issue any
warrants necessary for enforcing the orders or sentences of that
court:
Provided that in no
case shall any sentence be increased by reason of or in consideration of any
evidence which was not given before the court of
trial.
Powers
which may be exercised by a judge of the Court of
Appeal.
49.
The powers of the Court of Appeal under this Part to give leave to appeal, to
extend time within which notice of appeal or an application for leave to appeal
may be given, to assign legal aid to an appellant, and to admit an appellant to
bail, may be exercised by any judge of the Court of Appeal in like manner as
they may be exercised by the Court of Appeal and subject to the same provisions;
but, if the judge refuses an application on the part of an appellant to exercise
any such power in his favour, the appellant shall be entitled to have the
application determined by the Court of Appeal as duly constituted for the
hearing and determining of appeals under these
Rules.
Bail.
(Second
Schedule Form
3)
(Second
Schedule Forms 4 and
5)
50.
(1) An appellant who is in custody may, after he has filed notice of appeal in
accordance with these Rules, apply to a judge of the High Court, and in the case
of the Gilbert and Ellice Islands Colony to a judge of the High Court or to the
Senior Magistrate of the Colony, to be released on bail pending the
determination of his appeal. The application may be made in Form 3 of the Second
Schedule. If the judge or the Senior Magistrate, as the case may be, shall
decide to order the release of the appellant on bail he shall specify the
amounts in which the appellant and his surety or sureties (if any be required)
shall be bound by recognizance. The recognizance provided for in this rule shall
be in the appropriate Forms set out in the Second Schedule and may be taken
before any judge or Registrar of the High Court or any
magistrate.
(Second
Schedule Forms 6 and 7)
(2) If
a judge of the High Court, or, in the case of the Gilbert and Ellice Islands
Colony, a judge of the High Court or the Senior Magistrate of the Colony, shall
have reason to believe that it is in the interests of justice so to do he may at
any time revoke an order releasing an appellant on bail or he may summon the
appellant and his sureties, if any, before him and may, upon proof that a breach
of recognisance as occurred, order the recognizances of the appellant and his
sureties, if any, to be estreated; and he may in addition thereto issue a
warrant for the appellant to be brought before him and may commit him prison to
abide the result of the appeal and may make such other order as he may consider
appropriate.
(3) Whenever bail
is granted or revoke pursuant to the provisions of paragraph (1) or (2), the
Registrar of the High Court shall forthwith notify the Registrar of the Court of
Appeal.
(4) Notwithstanding
anything contained in this rule, the Court of Appeal may at any time of its own
motion direct that an appellant shall be granted release on bail pending
determination of an appeal or that any bail granted to an appellant shall be
enlarge or revoked, or the conditions of recognizance
varied.
(5) When an appellant
is admitted to bail the time during which he is at large after being so admitted
shall be disregarded in computing the term of any sentence to which he is for
the time being subject.
(6)
Subject to the provisions of paragraph (5), the term of any sentence passed by
the Court of Appeal in substitution for a sentence passed on the appellant in
the proceedings from the appeal is brought shall, unless the Court of Appeal
otherwise directs, begin to run from the time when it would have begun to run if
passed in those proceedings, and references in this rule to any sentence to
which the appellant is for the time being subject shall be construed
accordingly.
Duties
of Registrar of Court of Appeal with respect to notices of
appeal.
51.
The Registrar of the Court of Appeal shall take all necessary steps for
obtaining a hearing of the appeal under this Part of any appeal notice of which
is given to him, and he shall obtain and lay before the Court of Appeal in
proper form all documents, exhibits and other things relating to the proceedings
in the court before which the appellant was tried which appear necessary for the
proper determination of the
appeal.
Summary
determination of appeals in certain
cases.
52.
If it appears to the Registrar of the Court of Appeal that any notice of appeal
against conviction purporting to be based on a ground of appeal which involves a
question of law alone does not show any substantial ground of appeal, the
Registrar may refer the appeal to the Court of Appeal for summary determination;
and where the case is so referred, the Court of Appeal may, if it considers that
the appeal is frivolous or vexatious and can be determined without adjourning
the same for a full hearing, dismiss the appeal
summarily.
Provisions
of forms of notice of appeal for use of
appellants
53.
The Registrar of the High Court shall supply the appropriate forms and
instructions in relation to notices of appeal under this Part to any person who
demands the same to officers in charge of prisons and such other officers and
persons as he thinks fit and the officers in charge of prisons shall cause such
forms and instructions to be placed at the disposal of prisoners desiring to
appeal and shall cause any such notice given by a prisoner in his custody to be
forwarded on behalf of the prisoner to the Registrar of the High
Court.
Judgments
in criminal
appeals.
54.
(1) In an appeal under this Part the Court of Appeal shall ordinarily give only
one judgment, which may be given by the senior member of the Court present at
the hearing of the appeal or by such other judge present at the hearing of the
appeal as the senior member may
direct:
Provided that
-
(a)
if any judge dissents from the judgment of the Court it shall not be obligatory
on him to sign the same; and
(b)
separate judgments shall be given if the Court is of the opinion that it is
convenient that there should be separate judgments.
(2) The judgment of
the Court of Appeal or of any judge present at the hearing of the appeal shall
be delivered in open court either at the hearing of the appeal or at any
subsequent time of which notice shall be given by the Registrar of the Court of
Appeal to the parties to the appeal or their
representatives.
(3) The
judgment of the Court of Appeal or of any judge present at the hearing of the
appeal may be read in open court by any judge, whether present at the hearing on
that appeal or not, or by the Registrar of the Court of
Appeal.
Power
to reserve questions of law for the Court of
Appeal.
55.
In addition to and without prejudice to any right of appeal, a judge of the High
Court, at the conclusion of the hearing by him of any appeal or case stated from
a magistrate's court in any criminal cause or matter, may reserve, on a case
stated by him, any question of law which seems to him to be of general public
importance and which may have arisen during such hearing, for consideration by
the Court of Appeal, and shall give his judgment subject to the opinion of the
Court of Appeal on such point of law; and the Court of Appeal shall have power,
after hearing the appellant or his representative, if he appears, or after
considering his arguments in writing if any be submitted, and the respondent or
his representative, if he appears, or after considering his arguments in writing
if any be submitted, to determine every such question, and shall notify the High
Court of its decision, and the judge of the High Court shall make such order,
conformable with the decision of the Court of Appeal, as may be
necessary:
Provided that in
the event of such judge dying or departing from the territory or being otherwise
incapacitated from acting, another judge of the High Court may make such
order.
Notification
of final determination of criminal
appeals.
56.
(1) On the final determination of an
appeal under this Part, the Registrar of the Court of Appeal
-
(a)
shall notify in such manner, having regard to the urgency thereof, as he
considers most convenient to the Registrar of the High Court the decision of the
Court of Appeal in relation thereto and also any orders or directions made or
given by the Court of Appeal in relation to such appeal or any matter connected
therewith; and
(b)
shall in any event send to the Registrar of the High Court one certified copy of
the final judgment of the Court of Appeal.
(2) Upon receipt of
notification of the result of an appeal the Registrar of the High Court shall
forthwith notify the result to the appellant and the respondent respectively,
and if the appellant is in custody, shall also notify the officer in charge of
prisons in the territory
concerned.
Prerogative
of
mercy.
57.
Nothing in these Rules shall effect the prerogative of mercy, but the High
Commissioner or the Governor, as the case may be, in considering the exercise of
such prerogative with reference to the conviction of a person by the High Court
or to the sentence passed upon a person so convicted, whether or not the person
so convicted has petitioned in that behalf, may, if he thinks fit, at any time
after giving notice of his intention so to do to the Registrar of the High Court
either -
(a)
refer the whole case to the Court of Appeal and the case shall then be heard and
determined by the Court of Appeal as in the case of an appeal by the person
convicted, who shall be deemed to be an appellant for the purposes of these
Rules; or
(b)
if he desires the assistance of the Court of Appeal on any point arising in the
case, refer that point to the Court of Appeal for its opinion thereon, and the
Court shall consider the point so referred in private, unless it otherwise
determines, and shall furnish the High Commissioner or the Governor, as the case
may be, with their report thereupon accordingly.
PART
V
Appeals from
High Court in exercise of Appellate Jurisdiction
Division
(a) - Civil Jurisdiction
Appeals
from High Court in exercise of its appellate jurisdiction in civil
cases.
58.
Subject to the provisions of this Part, the provisions of Parts I, II and III
shall apply
mutatis
mutandis to appeals from decisions of the
High Court in exercise of its appellate jurisdiction in civil
cases.
Notice
of appeal from High Court in appellate jurisdiction in civil
cases.
59.
(1) The notice of appeal, in addition to being filed with the Registrar of the
High Court in accordance with rule 19, shall be served upon the proper officer
of the court of trial and upon all parties to the proceedings in that court who
are directly affected by the
appeal:
Provided that the
Court of Appeal may in any case direct that notice of appeal be served upon any
party to the proceedings in the trial court upon whom it has not be served or
upon any person not a party to those
proceedings.
(2) In any case
in which the Court of Appeal directs the notice of appeal to be served upon any
party or person, the Court may also direct that any respondent's notice by which
that party or person is directly affected shall be served upon
him.
(3) The Court of Appeal
may in any case where it gives a direction under this rule -
(a)
postpone or adjourn the hearing of the appeal for such period and upon such
terms as may be just; and
(b)
give such adjournment and make such order on the appeal as might have been given
or made if the persons served in pursuance of the direction had originally been
parties.
(4) The notice of
appeal shall state precisely the questions of law, and fact if any, upon which
the appeal is
brought.
Time
for appealing from High Court in appellate jurisdiction in civil
cases.
60.
In relation to any appeal from a decision or order of the High Court in exercise
of its civil jurisdiction, rule 20 shall have effect as if for the words "the
date on which the judgment or order of the High Court was signed, entered or
otherwise perfected" there were substituted the words "the date of the judgment
or order of the court
below".
Preparation
of record in appeals from High Court in its appellate
jurisdiction.
61.
The provisions of rule 25 shall apply to the preparation of the record in
appeals from the High Court in exercise of its appellate jurisdiction under this
Part subject to the inclusion in the record for submission to the Court of
Appeal the record of proceedings in the court of trial at first instance as well
as the record of proceedings in the High Court upon the appeal
theretp.
Stay
of proceedings or execution on appeal from High Court in its appellate
jurisdiction.
62.
Paragraph (1) (a) of rule 26 shall not apply in the case of appeals from the
High Court acting in exercise of its appellate jurisdiction in civil cases; but
the appeal shall not operate as a stay of proceedings in the High Court or in
the court of trial unless a judge of the High Court, or in the case of the
Gilbert and Ellice Islands Colony the Senior Magistrate thereof, so orders, or
unless, within twenty-one days after the date of the judgment or order appealed
from, the appellant deposits with the court such sum fixed by the judge from
whose decision the appeal is brought, not exceeding the amount of money or the
value of the property affected by the judgment or order, or gives such security
for the said sum as the judge may direct.
Division
(b) - Criminal Jurisdiction
Appeals
from High Court in appellate jurisdiction in criminal
cases.
63.
Subject to the provisions of this Part, the provisions of Parts I, II and IV
shall apply
mutatis
mutandis to appeals from the High Court
in exercise of its criminal
jurisdiction.
Time
for appealing from High Court in appellate jurisdiction in criminal
cases.
64.
Rule 35 shall apply as though for the words "within thirty days after the date
of the conviction or order" there were substituted the words "within thirty days
after the date of the judgment or order of the High Court issued upon the appeal
from the court of
trial".
Record
to be sent to Registrar of Court of Appeal on appeal from High Court in
appellate jurisdiction in criminal
cases.
65.
The record to be forwarded to the Registrar of the Court of Appeal under Rule 41
shall include a copy of the record of the proceedings in the court of trial as
well as a record of the proceedings before the High Court upon the appeal to
that
court.
Reports
to Court of
Appeal.
66.
Rule 44 shall apply in the case of appeals from the High Court in exercise of
its criminal jurisdiction as if the words "the judge of the High Court" included
a reference to the magistrate or president of the court of trial in first
instance, as the case may require.
PART
VI
Transition and
revocation of previous Rules.
Transition.
67.
Any appeal commenced under the Court of Appeal Rules (No.2), 1956, revoked by
these Rules, shall be deemed for all purposes to have been commenced under these
Rules and the provisions of these Rules shall apply
thereto.
Revocation
of previous
Rules.
68.
The Court of Appeal Rules (No.2), 1956, are revoked.
________
FIRST
SCHEDULE
(rule 10)
Fees
(Civil Appeals).
|
$
Australian
|
1. On filing a notice of
appeal from a final decision (including setting down and notice of
hearing)................................................................
|
14.00
|
2. On filing a notice of
appeal from an interlocutory decision (including setting down, notice thereof
and hearing).........................................
|
8.00
|
3. On an application for
-
(a)
enlargement of time;
(b)
fixing or dispensing with security;
(c)
leave to amend;
(d)
directions for service;
(e)
stay of execution; or
(f)
any interim or other order
..............................................
|
4.00
|
4. On filing respondent's
notice ....................................................
|
8.00
|
5. On every bond or deposit
......................................................
|
1.00
|
6. On filing any affidavit
or any other document unless otherwise provided
.......................................................................................................
|
0.50
|
7. For copies of the record
of the appeal for the use of the Court of Appeal for every page -
(a)
of the certified copy
.....................................................
(b)
of each of the uncertified copies
.......................................
|
0.50 0.25
|
8. For copies of the record
of the appeal for any party - for every page ......
|
0.25
|
9. For a copy of a judgment
- for each page ....................................
|
0.50
|
10. On entering or sealing
the judgment made on the hearing of an appeal
...........................................................................................
|
6.00
|
11. On entering or sealing
any other order made by the Court of Appeal or a judge thereof or a judge of the
High Court including orders for security of costs and enlargement of time
......................................................
|
2.00
|
12. On certifying a copy of
a judgment or order as a true copy - for each page
.....................................................................................
|
0.50
|
13. On any certificate by
the Registrar of the Court of Appeal or a Registrar of the High Court
.....................................................................
|
1.00
|
14. On filing a bill of
costs and obtaining appointment of tax ...............
|
1.50
|
15. On taxation on every
four dollars or part thereof allowed ...............
|
0.15
|
16. On a certificate or
allocatur of the taxing officer ............................
|
0.50
|
Note:
A page of any size shall be deemed to be a page.
_________
SECOND
SCHEDULE
Form
1. (rule 35)
Court
of Appeal Rules, 1973
Notice of Appeal
Against Conviction or
Sentence.
To:
The Registrar of the Court of Appeal, through the Registrar of the High
Court.
[Name
of
Appellant]
convicted before the High Court of the Western Pacific at ........ of the
offence of ....... and sentenced to ......................... on the ........
day of ...... 19.... and detained in H.M. Gaol at ........
[or
now living at .......
].
I,
the abovenamed appellant, hereby give you notice of appeal to the Court of
Appeal against:-
(a)
my conviction;
(b)
my sentences;
on the following
grounds:-
STATE: Whether
you desire the Court to assign you legal
aid.
Dated at ....... this
...... day of ....... 19....
Appellant.
or
his advocate.
______
Form
2. (rule 42)
Court
of Appeal Rules, 1973.
Regina
v.
Notice
of Abandonment of Appeal
To:
The Registrar of the Court of Appeal, through the Registrar of High
Court.
I, ...............
having been convicted by the High Court of the Western Pacific on the
.............. day of ........... 19.... of the offence of ................. and
having been desirous of appealing and having duly sent notice of that appeal to
the Court of Appeal against my conviction (or sentence of .......... passed upon
me on my said conviction) do hereby give you notice that I do not intend to
prosecute my appeal but that I hereby abandon all further proceedings in regard
thereto as from the date
hereof.
Dated this .........
day of ........ 19.....
Appellant.
or
his advocate.
________
Form
3. (rule 50(1)).
Court
of Appeal Rules, 1973.
Notice
of Application by Appellant for Bail Pending Appeal.
To:
The Registrar of the High
Court
I, .....................
having been convicted the crime of ................... and being a prisoner in
the goal at ................ and having given Notice of Appeal do hereby give
notice that I desire to apply to the Judge of the High Court
[Senior
Magistrate of the Gilbert and Ellice Islands
Colony]
for bail with/without sureties on the following
grounds:-
The undermentioned
persons are willing to be become sureties on my behalf to the amount of $
............. each.
Name:
Address:
Name:
Address:
Dated this
.................. day of ................ 19.....
Appellant.
or
his advocate
______
Form
4. (rule 50(1)).
Court
of Appeal Rules, 1973
Recognizance
of Bail of Appellant.
Be it Remembered that
whereas ............. was convicted of ........ on the ....... day of ....
19.... and was thereupon sentenced to ......... and is now in lawful custody in
the goal at .......... and has duly appealed against his conviction (and
sentence) to the Court of Appeal and has applied to the Judge of the High Court
[Senior
Magistrate of the Gilbert and Ellice Islands
Colony]
for bail pending the determination of his appeal And Whereas the said Judge
[Senior
Magistrate]
has granted him bail on his entering into his own recognizance in the sum of $
....... and with surety/ies each in the sum of $ ........ the said ...........
personally comes before me and acknowledges himself to owe to Her Majesty the
Queen the said sum of $.......... of good and lawful money to be made and levied
of his goods, chattels, lands and tenements to the use of Her Majesty the Queen,
her heirs and successors, if he the said ............ fail in the condition
hereon endorsed.
Taken and
Acknowledged this ........ day of ....... 19.... at ....... before
me.
Judge/Registrar
of the High Court/Magistrate.
Condition.
The condition of the
above written recognizance is such that if he the said ......... shall reside
within and not depart from the ......... district of ............ until the
determination of his appeal without the prior permission of a Judge of the High
Court
[Senior
Magistrate of the Gilbert and Ellice Islands
Colony]
and shall personally appear and surrender himself at and before the High Court
of the Western Pacific
[or
the said Senior
Magistrate]
at a date and place to be notified to him and shall there and then abide by the
judgment of the Court of Appeal, then this recognizance to be void or else to
stand in full force and
effect.
[The
following to be filled up by the appellant and signed by him or his
advocate].
When
released on bail my residence, to which any notices, etc., are to be addressed,
will be as follows:-
Appellant.
or
his advocate.
______
Form
5. (rule 50(1)).
Court
of Appeal Rules, 1973
Recognizance
of Bail of Appellant's Sureties.
Be it Remembered that
on this ......... day of ......... 19...... of ....... and ....... of .........
personally came before me and severally acknowledged themselves to owe to Her
Majesty the Queen the several sums following, that is to say the said ...... the
sum of $...... and the said ....... the sum of $.........of good and lawful
money to be made and levied of their goods and ........ chattels, lands and
tenements, respectively, to the use of Her Majesty the Queen, her heirs and
successors, if ....... now in lawful custody in the goal at ......... fail in
the condition hereon
endorsed.
Taken and
Acknowledged before me the undersigned the day and year first above
mentioned.
Judge/Registrar
of the High Court/Magistrate
Condition.
The condition of the
above written recognizance is such that the said ........ having been convicted
of ......... and now in such lawful custody as before mentioned under a sentence
of ......... for such offence and having duly appealed to the Court of Appeal
against his said conviction (and sentence) and having applied for bail, pending
the determination of his said appeal, has been granted bail on his entering into
recognizance in the sum of $........ with sureties each in the sum of $.......
if the said ...... shall reside within and not depart from the ........ district
of ....... until the ......... determination of his appeal without the prior
permission of a Judge of the High Court
[the
Senior Magistrate of the Gilbert and Ellice Islands
Colony]
and shall personally appear and surrender himself at and before the High Court
of the Western Pacific
[or
the said Senior
Magistrate]
at a date and place to be notified to him and shall there and then abide by the
judgment of the Court of Appeal, then this recognizance to be void or else to
stand in full force and effect.
______
Form
6. (rule 50 (2)).
Court
of Appeal Rules, 1973.
In
the High Court of the Western
Pacific.
[Senior
Magistrate's
Court.]
Held
at..........................................................................................
Before
................................................................. Criminal
Jurisdiction.
Notice to
Appellant Released on Bail of Breach of His
Recognizance.
To
the above named ............................
appellant.
Whereas you were
convicted on the ....................... day of ............. 19.....of the
offence of ....... and were sentenced to ............ imprisonment, and you
entered into recognizances in the sum of $........ with sureties in the sum of
$......... each and were released on bail pending the determination of your
appeal.
And whereas there is
reason to believe that breach of the condition of such recognizance has
occurred, now I give you notice that unless you attend at the sitting of this
Court to be held at ....... on the ....... day of ..... 19..... at ..........
o'clock in the ......... noon and then show good cause to the contrary, the
Court may order an estreat of your recognizances and those of your sureties and
may issue a warrant for your apprehension and committal to prison pending the
result of your appeal, or may otherwise deal with you according to
law.
Dated
this...............day of ........ 19.......
Registrar
of the High Court
______
Form
7. (rule 50 (2)).
Court
of Appeal Rules, 1973.
In
the High Court of the Western
Pacific
[Senior
Magistrate's
Court.]
Held at
...............................................................................................
Before
..................................................................... Criminal
Jurisdiction.
Regina
v.
Notice to Surety of
Appellant Released on Bail of Breach of his
Recognizance.
To:
........................... of
......................................................
Whereas
you, the above named, became duly bound on recognizance as surety in the sum of
$........................ for that the said ............... having been
convicted of .........and sentenced to ........... imprisonment was released on
bail pending the determination of his
appeal.
And whereas there is
reason to believe that breach of the condition of such recognizance has
occurred, now I give you notice that at the sitting of this Court to be held at
....... on the .........day of .......... 19..... at ......o'clock in the
........ noon your recognizances may be estreated unless you show good cause to
the contrary.
Dated this
........ day of ....... 19.....
Registrar
of the High Court
______
Form
8. (rule 39(3)).
Court
of Appeal Rules, 1973
Recognizance
of Appellant Sentenced to Payment of a Fine.
Be it Remembered that
whereas ............... of ............... was on the ............... day of
........... 19.... convicted of .............. and was thereupon sentenced to
pay the sum of $....... as a fine for his said offence and in default of such
payment to imprisonment for a term of ................ and has intimated that he
desires to appeal against the said conviction and has duly served notice of
appeal And Whereas a Judge of the High Court
[Senior
Magistrate of the Gilbert and Ellice Islands
Colony]
considers the said appellant may in lieu of payment at and upon his conviction
of the said sum be ordered to enter into recognizance's of bail himself in the
sum of $......... and with ............. surety/ies each in the sum of
$.................. to prosecute his said appeal before the Court of
Appeal.
The said
.................... and ................... of ................... and
................ of.......... personally come before me this ....... day of
........ 19... and severally acknowledge themselves to owe to Her Majesty the
Queen the several sums following that is to say the said ......... the sum of
$........ the said ............. the sum of $........... of good and lawful
money to be made and levied of their goods and chattels, lands and tenements
respectively to the use of Her Majesty the Queen, her heirs and successors if
.................. fail in the conditions endorsed
herein.
Taken and Acknowledged
before me the day and year abovementioned.
Appellant:
Surety:
Surety:
Judge/Registrar
of the High Court/Magistrate
Condition
The condition of the
above–written recognizance is such that if the said .................
shall prosecute his appeal before the Court of Appeal and abide by the judgment
of the said Court then this recognizance to be void, or else to stand in full
force and
effect.
[The
following to be filled by the appellant and signed by
him]
When released on bail, my residence to which any notices, etc., are to be
addressed, will be as follows:
Appellant
______
Form
9. (rule 39 (5)).
Court
of Appeal Rules, 1973
In
the High Court of the Western
Pacific
[Senior
Magistrate's
Court]
Held at
...............................................................................................
Before
...................................................................... Criminal
Jurisdiction.
Regina
v.
Notice to Appellant
Sentenced to a Fine of Breach of
Recognizance.
To the
above-named ................
appellant.
Whereas you were
convicted on the ..................... day of ............... 19...... of the
offence of ....... and were sentenced to the payment of a fine of $....... and
in default of such payment to imprisonment for a term of ....... and whereas you
entered into recognizance in the sum of $....... with sureties in the sum of
$.......... each to prosecute your appeal and abide by the judgement of the
Court of Appeal.
And Whereas
the Court of Appeal ordered on the ........ day of ........ 19.....
that-
And Whereas you have
failed to abide by the order of the Court of Appeal, now I give you notice that
unless you attend at the sitting of this Court to be held at ....... on the
...... day of ........... 19.... at ........ o'clock in the ........ noon and
then show good cause to the contrary, the Court may order an estreat of your
recognizance and those of your sureties and may issue a warrant for your
apprehension and may commit you to prison on default of payment of the fine or
may otherwise deal with you according to
law.
Dated this ........ day
of ....... 19......
Registrar
of the High Court
______
Form
10. (rule 39 (5)).
Court
of Appeal Rules, 1973
In
the High Court of the Western
Pacific
[Senior
Magistrate's
Court]
Held at
.....................................................................................................
Before
............................................................................
Criminal Jurisdiction.
Regina
v.
Notice to Surety for
Appellant Sentenced to a Fine of Breach of
Recognizance.
To:
...................................of
.................................................
Whereas
you, the above named, became duly bound on recognizance as surety in the sum of
$............. for that the said .............. having been convicted of
................ and for his said offence fined the sum of $............. should
prosecute his appeal in relation to his conviction before the Court of Appeal
and abide the judgment of the said
Court.
And Whereas the Court
of Appeal ordered on the .......... day of ......... 19......
that-
And Whereas the said
......... has failed to abide by the order of the Court of Appeal, now I hereby
give you notice that at the sitting of this Court to be held at ...... on the
.........day of .......... 19..... at ........ o'clock in the ........ noon your
recognizance may be ordered to be estreated unless you then show good cause to
the contrary.
Dated this
............ day of ........ 19........
Registrar
of the High Court
______
Form
11. (rule 43)
Court
of Appeal Rules, 1973
Notice of Application
for Extension of Time Within Which to
Appeal
To:
The Registrar of the High
Court.
I, .......... having
been convicted of the offence of ........... by the High Court of the Western
Pacific at ....... on the ........ day of ..... 19.... and being now a prisoner
in the gaol at ........
[or
now living at .......
]
give you notice that I hereby apply for an extension of time within which I may
give notice of appeal on the grounds
following:-
Dated this
........ day of .....19......
Appellant.
or
his advocate.
______
Made this
28th
day of February 1973.
.......................................
Chief
Justice
..............................
Attorney
General
Agreed
by the President of the Fiji Court of Appeal
........................................
Approved
by the High Commissioner
........................................
23rd
March 1973
____________
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