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Vanuatu Consolidated Legislation |
Commencement: 1 October 1981
LAWS
OF THE REPUBLIC OF
VANUATU
REVISED
EDITION 1988
CHAPTER 136
Act
21 of 1981
Act 19 of
1986
Act 8 of 1988
ARRANGEMENT OF SECTIONS
SECTION
PART
I
Preliminary
Provisions
1.
Interpretation
2. Trial of
offences
3. Committal for sentence
s.4(2) of Cap. 122
PART
II
General
Provisions
Arrest,
Escape and
Re-arrest
Arrest
Generally
4. Arrest how
made
5. Search of place entered by
person sought to be arrested
6. Power
to break open doors and windows for purposes of
liberation
7. No unnecessary
restraint
8. Search of arrested
persons
9. Power of police officer to
detain and search boats, vehicles and persons in certain
circumstances
10. Mode of searching
persons
11. Power to seize offensive
weapons
12. Arrest by police officer
without warrant
13. Procedure when
police officer deputes subordinate to arrest without
warrant
14. Refusal to give name and
residence
15. Disposal of person
arrested by police officer
16. Arrest
by private person
17. Disposal of
person arrested by private person
18.
Detention of person arrested without
warrant
19. Police to report
arrests
Escape
and Arrest
20. Recapture of person
escaping
21. Provisions of ss.5 and 6
to apply to arrests under s.20
22.
Assistance to judicial officer or police officer
Preventive Action by the Police
23. Police to prevent breaches of the peace or cognisable offences
PART
III
Provisions
Relating to all
Prosecutions
Place
of Trial
24. General authority of
courts
25. Place and date of sittings
of the Supreme Court
26. Court to be
open
27. Power of Supreme Court to
transfer proceedings
Control of Criminal Proceedings
28. Public
Prosecutor
29. Nolle
prosequi
30. Power to assume conduct
of private prosecution
Appointment of State Prosecutors and Conduct of Prosecutors
31. Appointment of state
prosecutors
32. Advocates, public
officers and police officers may be appointed state
prosecutors
33. Certain offences may
be prosecuted by public officer
Institution
of
Proceedings
Making
of Complaint
34. Institution of
proceedings
35. Complaint and
charge
36. Issue of summons or
warrant
37. Person arrested without
warrant how to be dealt with
Processes
to Compel the Appearance of accused
Persons
Summons
38. Form and contents of
summons
39. Service of
summons
40. Service when person
summoned cannot be found
41. Procedure
when service cannot be affected as before
provided
42. Service on body
corporate
43. Proof of
service
44. Power to dispense with
personal attendance of accused
Warrant of Arrest
45. Warrant in case of
avoidance of service
46. Warrant on
disobedience to summons
47. Form,
contents and duration of warrant
48.
Power to direct recognizance to be
taken
49. Warrant, to whom
directed
50. Execution of warrant
directed to police officer
51.
Notification of substance of
warrant
52. Person arrested to be
brought before the court without
delay
53. Warrant may be executed at
any time and place
54. Irregularities
in warrant
Search Warrants
55. Power to issue search
warrants
56. Execution of search
warrant
57. Person in charge of closed
place to allow entry
58. Detention of
property seized
59. Provisions
applicable to search warrants
Provisions as to Bail
60. Power in certain cases
to release from custody
61. Bond for
appearance
62. Special conditions of
bail
63. Discharge from custody of
person released
64. Power to order
sufficient conditions when conditions first imposed are
insufficient
65. Committal of person
bound by bail bond
66. Statement of
rights to be read on refusal of bail by
magistrate
67. Presiding magistrate
responsible for forwarding file to Supreme
Court
68. Report by presiding
magistrate to Supreme Court
69.
Decision of Supreme Court on bail
70.
No appeal against order refusing bail
PART
IV
Further
Provisions Concerning all
Criminal
Trials
Charges and Informations
71. Offences to be specified
in charge or information with necessary
particulars
72. Joinder of counts in a
charge or information
73. Joinder of 2
or more accused in 1 charge or
information
74. Rules for the framing
of charges and informations
75. Manner
of proof of previous convictions or acquittals
Compelling Attendance of Witnesses
76. Witness summons
77. Warrant for witness who disobeys
summons
78. Warrant for witness in
first instance
79. Mode of dealing
with witness arrested under
warrant
80. Power to order production
of prisoner as witness
Presumption of Innocence
81. Statement of presumption to be read to accused
Examination
of Witnesses
82. Power to summon material
witness or examine person present
83.
Evidence to be given on oath
84. Proof
by formal admission
85. Refractory
witnesses
86. Report of Government
analyst or prescribed expert
87.
Taking of evidence in absence of the accused
Evidence for Defence
88. Statement of rights of
accused to be read aloud
89.
Competency of accused and husband or wife as
witnesses
90. Order of defence
witnesses
Insanity or Other Incapacity of an Accused Person
91. Enquiry by court as to
insanity of accused
92. Defence of
insanity at trial
Judgment
93. Mode of delivering
judgment
94. Convicted person to be
informed of right of appeal
95.
Contents of judgment
96. Copy of
judgment to be given to accused on
application
97. Alternative or
additional charges
Costs and Compensation
98. Costs against
accused
99. Costs against private
prosecutor
100. Costs in addition to
compensation
101. State not to pay
costs
102. Orders to pay costs
appealable
103. Compensation in case
of frivolous or vexatious charge
104.
Costs and compensation to be specified in order, how
recoverable
105. Power of court to
award expenses out of fine
Disposal of Property
in Possession of the
Police,
Forfeiture and Restitution
of Property
106. Disposal of property
in possession of police
107. Order for
payment of money where property
sold
108. Property found on accused
person
Conviction for Offences other than those Charged
109. Conviction when offence
proved is included in offence
charged
110. Person charged with
offence may be convicted of
attempt
111. Alternative verdicts in
cases of homicide of children
112.
Alternative verdict in charge of unintentional homicide resulting from driving
of motor vehicle
113. Alternative
verdict in sexual case
114. Person
charged with robbery may be convicted of
theft
115. Alternative verdicts in
charges of theft etc.
116. Person
charged with lesser offence not to be acquitted if more serious offence
proved
117. Right of accused to be
defended
118. Promotion of
reconciliation
119. Account to be
taken of compensation by custom
PART
V
Mode of
Taking and Recording Evidence in
Trials
General
120. Evidence to be taken in
presence of accused
121.
Interpretation of evidence to accused or his advocate
Magistrates Courts
122. Manner of recording
evidence before magistrate
123.
Remarks respecting demeanour of
witness
124. Procedure in cases of
minor offences
125. Conviction on evidence partly recorded by one magistrate and partly by another
Supreme Court
126. Manner of recording evidence in Supreme Court
PART
VI
Procedure in
Trials before the Magistrate's Court
127. Non-appearance of
complainant at hearing
128. Appearance
of both parties
129. Withdrawal of
complaint
130.
Adjournment
131. Non-appearance of
parties after adjournment
132. Conduct
of prosecution
133. Accused to be
called upon to plead
134. Procedure on
plea of not guilty
135. Acquittal of
accused person when no case to
answer
136. The
defence
137. Evidence in
reply
138. Addressing the
court
139. Amendment of
charge
140. The
decision
141. Drawing up conviction or
order
142. Order of acquittal bar to
further procedure
PART
VII
Offences
Triable in Supreme
Court
Preliminary
Enquiry
143. Preliminary enquiry
to be held
144. Draft information
prepared by the prosecutor
145.
Procedure to be followed by senior
magistrate
146. The
decision
Initiation of Prosecutions in Supreme Court
147. Notice of
trial
148. Copy of information and
notice of trial to be served
149.
Return of service
150. Postponement of
trial
151. Information by Public
Prosecutor
152. Form of
information
PART
VIII
Assessors
153. Qualifications of
assessors
154. Persons
ineligible
155. Exemption from
service
156. List of
assessors
157. Notice to assessors,
scale of allowances
158. Ground of
objection to assessor
159. Disposal of
objections
PART
IX
Procedure in
Trials before Supreme Court
160. Information and
plea
161.
Opening
162. Evidence for
prosecution
163. Statements by the
accused
164. Procedure after close of
prosecution
165. Opening
defence
166. Evidence of
accused
167. Other defence
witnesses
168. Order of defence
witnesses
169. Rebutting
evidence
170. Final
addresses
171. Absence of an
assessor
172. Incapacity of
accused
173. Assessors may withdraw
during arguments
174. View by
court
175. When an assessor may
testify
176.
Adjournment
177. When assessors to be
kept together
178. Summing
up
179. Province of
judge
180. Function of
assessors
181. Retirement to consider
opinion
182. Delivery of
opinion
183. Further
directions
184. Recording
opinion
185. Verdict of
judge
186. Delivery of
verdict
Procedure After Verdict
187. Procedure on
conviction
188. Procedure on
acquittal
PART
X
Sentences and
their Execution
189. Warrant in case of
sentence of imprisonment
190. Warrant
in case of other custodial
sentence
191. Liability of several
persons jointly convicted
192. Payment
of fine
193. Warrant for levy of fine,
etc.
194. Objection to
attachment
195. Committal in lieu of
distress
196. Payment in full after
committal
197. Part payment after
committal
198. Who may issue
warrant
199. Errors and omissions in
orders and warrants
PART
XI
Appeals from
Magistrate's Court and Supreme Court
200. Appeals to Supreme Court
and Court of Appeal
201. Procedure on
appeal
202. Appellant in
prison
203. Sending for
record
204. Summary rejection of
appeal
205. Fixing of
appeal
206. Order of registrar to be
served on respondent
207. Powers of
appeal court
208. Order of appeal
court to be certified to trial
court
209. Release from custody or
suspension of sentence pending
appeal
210. Further
evidence
211. Costs of appeal how
recovered
212. Appeals to be
final
PART
XII
Civil
Claims in Criminal Proceedings
213. Court may hear civil
claim against person charged with criminal
offence
214. Claims to be in writing
and court to hear claimant and
witnesses
215. Claim not to be made if
instituted in civil court
216.
Appeals
217. Procedure
PART
XIII
Special
Jurisdiction of Supreme Court in Constitutional Matters
218. Petitions under Articles
6, 53(l), 53(2) and 54 of the
Constitution
219. Jurisdiction under
Articles 16(4), 39(3), 53(3) and 54 of the
Constitution
220. Further rules of
procedure may be made by the Chief Justice
PART
XIV
Supplementary
Provisions
Irregular
Proceedings
221. Error or omission in
charge or other proceedings
222.
Distress not illegal etc. for defect or want of form
Enquiries
as to Sudden Deaths
223. Senior magistrate
empowered to hold inquest
224.
Investigation in case of violent
death
225.
Finding
226. Court not to express any
opinion on the evidence
227. When
inquest obligatory
Directions
for the Production of a Person
228. Power to issue directions
Miscellaneous Provisions
229. Swearing of
affidavits
230. Shorthand notes of
proceedings
231. Copies of
proceedings
232.
Forms
233. Expenses of assessors,
witnesses etc.
234. Court
fees
SCHEDULE - Cognisable Offences
----------------------------------------------------------
To provide for a code of procedure in criminal cases.
PART
I
PRELIMINARY
PROVISIONS
INTERPRETATION
1. In this Code, unless the context otherwise requires -
"advocate" means a person entitled to practise as a legal practitioner before a court in Vanuatu;
“cognisable offence" means any offence for which a police officer may in accordance with the Schedule or under any law for the time being in force, arrest without warrant;
"judicial officer" means a judge or a magistrate;
“magistrate" means a magistrate or a senior magistrate as the case may be;
"Minister" means the Minister responsible for justice or any Minister acting on his behalf;
"Prosecutor" includes Public Prosecutor or state prosecutors;
“registrar" means a registrar of the Supreme Court or a clerk of a Magistrate's Court.
TRIAL OF OFFENCES
2. (1) All criminal offences under the Penal Code shall be tried and otherwise dealt with according to the same provisions, subject, however, to any other law regulating the manner or place of inquiring into, trying or otherwise dealing with such offences.
(2) Notwithstanding any other provisions of this Code, a court may, subject to the provisions of any other law of criminal jurisdiction in respect of any matter or thing to which the procedure described by this Code is inapplicable, or for which no procedure is so prescribed, exercise such jurisdiction according to substantial justice and the general principles of law.
COMMITTAL FOR SENTENCE S.4(2) OF CAP. 122
3. (1) When a magistrate trying a case under the provisions of section 4(2) of the Courts Act, Cap. 122 has convicted a person and considers that a higher sentence should be passed than he has power to pass, he may commit the offender for sentence to the Supreme Court.
(2) When a magistrate commits an offender under subsection (1) he may either release the offender on bail or remand him in custody until he appears or is brought before the Supreme Court.
(3) When an offender is committed under this section the Supreme Court may deal with the offender in any manner in which he could have dealt with if he had been convicted by the Supreme Court.
PART
II
GENERAL
PROVISIONS
Arrest,
Escape and
Re-arrest
Arrest
Generally
ARREST HOW MADE
4.
(1) The police officer or other person making an arrest shall actually touch or
confine the person to be arrested, unless there be
a submission to custody by
word or action.
(2) If a person forcibly resists the endeavour to arrest him, or attempts to evade arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section shall justify the use of greater force than is reasonable in the particular circumstances in which it is employed, or is necessary for the arrest.
SEARCH OF PLACE ENTERED BY PERSON SOUGHT TO BE ARRESTED
5. (1) If a person acting under a warrant of arrest, or a police officer having authority to arrest has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of such place shall, on demand of such person acting as aforesaid or such police officer, allow him free entry thereto and afford all reasonable facilities for a search therein.
(2) If entry cannot be obtained under subsection (1) it shall be lawful in any case for a person acting under a warrant, and in any case in which a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity to escape, for a police officer to enter such place and search therein, and, in order to effect an entrance into such place, to break open any outer or inner door or window of that place, whether being that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admission duly made, he cannot otherwise obtain admission.
POWER TO BREAK OPEN DOORS AND WINDOWS FOR PURPOSES OF LIBERATION
6. Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.
NO UNNECESSARY RESTRAINT
7. A person arrested shall not be subject to more restraint than is necessary to prevent his escape.
SEARCH OF ARRESTED PERSONS
8. Whenever a person is arrested and detained in custody, the police officer making the arrest or, when the, arrest is made by a private person the police officer into whose custody he places the person arrested, may search such person and place in safe custody all articles other than necessary wearing apparel, found upon him.
POWER OF POLICE OFFICER TO DETAIN AND SEARCH BOATS, VEHICLES AND PERSONS IN CERTAIN CIRCUMSTANCES
9. Any police officer may stop, search and detain any vessel, boat, vehicle or aircraft in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found and also any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained.
MODE OF SEARCHING PERSONS
10. Whenever it is necessary to cause a person to be searched, the search shall be made by a person of the same sex.
POWER TO SEIZE OFFENSIVE WEAPONS
11. The police officer or other person making an arrest may take from the person arrested any offensive weapons which he has about his person and shall deliver all weapons so taken to the court or officer before which or whom the officer or person making the arrest is required by law to produce the person arrested.
ARREST BY POLICE OFFICER WITHOUT WARRANT
12. (1) Any police officer may, without an order from a judicial officer, or warrant, arrest any person whom he suspects upon reasonable grounds of having committed a cognisable offence.
(2) Without prejudice to the generality of subsection (1) a police officer may without a warrant arrest -
(a) any person who commits a breach of the peace in his presence;
(b) any person who wilfully obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;
(c) any person whom he suspects upon reasonable grounds of being a deserter from the police or defence forces;
(d) any person whom he finds lying or loitering in any highway, yard or garden or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit an offence or who has in his possession without lawful excuse any offensive weapon or housebreaking implement;
(e) any person for whom he has reasonable cause to believe a warrant of arrest has been issued.
PROCEDURE WHEN POLICE OFFICER DEPUTES SUBORDINATE TO ARREST WITHOUT WARRANT
13. When any officer in charge of a police station requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall give the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made.
REFUSAL TO GIVE NAME AND RESIDENCE
14. (1) When any person who in the presence of a police officer has committed or has been accused of committing a non-cognisable offence refuses on the demand of such officer to give his name and address, or gives a name and address which such officer has reason to believe to be false, he may be arrested by such officer in order that his name and address may be ascertained.
(2) When the true name and address of such person has been ascertained he shall be released on -
(a) his signing a written undertaking to appear before a court if so required; and
(b) if not being normally resident in the Republic he surrenders his passport to a police officer who may retain it for not more than 72 hours.
(3) Should the true name and address of such person not be ascertained within 24 hours from the time of arrest, or should he fail to sign the undertaking or, if so required, to surrender his passport, he shall forthwith be taken before the nearest court having jurisdiction.
DISPOSAL OF PERSON ARRESTED BY POLICE OFFICER
15.
A police officer making an arrest without a warrant shall without unnecessary
delay and subject to the provisions herein contained
as to release from custody,
take or send the person arrested before a judicial officer or before an officer
in charge of a police
station.
ARREST
BY PRIVATE PERSON
16. (1) Any private person may arrest any person who commits a cognisable offence, or whom he reasonably suspects of having committed an offence punishable by a term of imprisonment for more than 10 years.
(2) Persons found committing
any offence involving damage to property may be arrested without a warrant by
the owner of the property
or persons authorised by
him.
DISPOSAL
OF PERSON ARRESTED BY PRIVATE PERSON
17. (1) Any private person who arrests a person without a warrant shall without unnecessary delay place the person so arrested in the custody of a police officer, or in the absence of a police officer shall take such person to the nearest police station.
(2) If there is reason to believe that a person placed in police custody under subsection (1) comes under the provisions of section 12 a police officer shall re-arrest him.
(3) If there is reason to
believe that such person has committed a non-cognisable offence and he refuses
on the demand of a police
officer to give his name and address, or gives a name
or address which such officer has reason to believe to be false, he shall be
dealt with under the provisions of section 14. If there is not sufficient reason
to believe that he has committed any offence, he
shall be at once
released.
DETENTION
OF PERSON ARRESTED WITHOUT WARRANT
18. (1) Subject to subsection (2) when any person has been taken into custody without a warrant for an offence other than intentional homicide or any offence against the external security of the Republic, the officer in charge of the police station to which such person shall be brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate court within 24 hours after he has been so taken into custody, inquire into the case. Unless the offence appears to the officer to be of a serious nature the officer shall release the person on his signing a written undertaking to appear before a court at a time and place to be named in the undertaking; but where any person is kept in custody he shall be brought before a court as soon as practicable.
(2) The officer in charge of
the police station may release a person arrested on suspicion of committing any
offence, when after due
police inquiry, insufficient evidence is, in his
opinion, disclosed on which to proceed with a prosecution for the
offence.
POLICE
TO REPORT ARRESTS
19.
Officers in charge of police stations shall make a report to the Commissioner of
Police about all persons arrested without warrant
within the limits of their
respective stations, whether such persons have been released from custody or
otherwise.
Escape and Arrest
RECAPTURE
OF PERSON ESCAPING
20.
If a person in lawful custody escapes or is rescued, the person from whose
custody he escapes or is rescued may immediately pursue
and arrest him in any
place in the
Republic.
PROVISIONS
OF SS. 5 AND 6 TO APPLY TO ARRESTS UNDER S.
20
21.
The provisions of sections 5 and 6 shall apply to arrests under section 20,
although the person making any such arrest is not acting
under a warrant and is
not a police officer having authority to
arrest.
ASSISTANCE
TO JUDICIAL OFFICER OR POLICE OFFICER
22. Every person is bound to assist a judicial officer or police officer reasonably demanding his aid -
(a) in the taking of or preventing the escape of any person whom such judicial or police officer is authorised to arrest;
(b) in the prevention or suppression of a breach of the peace or in the prevention of any injury attempted to be committed to any government property.
Preventive Action b the Police
POLICE TO PREVENT BREACHES OF THE PEACE OR COGNISABLE OFFENCES
23.
Every police officer may intervene for the purpose of preventing, and shall to
the best of his ability prevent, a breach of the peace
or the commission of any
cognisable offence.
PART
III
PROVISIONS
RELATING TO ALL
PROSECUTIONS
Place
of Trial
GENERAL AUTHORITY OF COURTS
24.
Every court has authority to cause to be brought before it any person who is
within the local limits of its jurisdiction and is charged
with an offence
committed within the Republic, or which according to law may be dealt with as if
it had been committed within the
Republic and to deal with the accused person
according to its
jurisdiction.
PLACE
AND DATE OF SITTINGS OF THE SUPREME COURT
25. (1) For the exercise of its criminal jurisdiction the Supreme Court shall hold sittings in each district of the Court at such places and on such dates as the Chief Justice may direct.
(2) The registrar shall
ordinarily give notice beforehand of all such
sittings.
COURT
TO BE OPEN
26. (1) Subject to subsection (2) the place in which a court is held for the purpose of trying an offence shall be open and accessible to the public so far as the same can conveniently contain them.
(2) The judicial officer may
for reasons of decency, security of the Republic or where otherwise authorised
by law, order at any stage
in the trial of any particular case that the public
generally, or any particular person or class of persons, shall not have access
to, or be or remain in, the room or building used by the
court.
POWER OF
SUPREME COURT TO TRANSFER PROCEEDINGS
27. (1) Whenever it appears to the Supreme Court that it is necessary or expedient so to do, it may order that the accused person against whom proceedings have been instituted in a Magistrate's Court be brought for trial to itself or that an accused person against whom proceedings have been instituted in the Supreme Court be sent for trial to a Magistrate's Court if that court has jurisdiction to try the case.
(2) The Supreme Court may act
either on the report of a Magistrate's Court or on the application of an
interested party or of its
own motion.
Control
of Criminal Proceedings
PUBLIC PROSECUTOR
28.
Any person who may be appointed a state prosecutor under section 31 shall be
under the control of the Public Prosecutor and be bound
to conform to any
direction which may be given by the Public
Prosecutor.
NOLLE
PROSEQUI
29. (1) In any criminal case and at any stage thereof before verdict or judgment, the Public Prosecutor may enter a nolle prosequi by informing the court that he intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released; such discharge of an accused person shall operate as a bar to any subsequent proceedings against him on account of the same facts and he shall be treated in all respects as though he had been acquitted.
(2) If the accused shall not
be before the court when a nolle prosequi is entered, the registrar of such
court shall forthwith cause
notice in writing of the entry of such nolle
prosequi to be given to the keeper of the prison in which the accused may be
detained.
POWER
TO ASSUME CONDUCT OF PRIVATE PROSECUTION
30.
In addition to the provisions of sections 28 and 29, the Public Prosecutor shall
have the power of assuming the conduct of any prosecution
initiated by a private
prosecutor.
Appointment
of State Prosecutors and Conduct of Prosecutors
APPOINTMENT OF STATE PROSECUTORS
31. (1) The Public Prosecutor may appoint generally, or in any case, or for any specified class of cases, in any local area, any suitably qualified person to act as state prosecutor.
(2) Every state prosecutor shall be subject to the express directions of the Public Prosecutor.
ADVOCATES, PUBLIC OFFICERS AND POLICE OFFICERS MAY BE APPOINTED STATE PROSECUTORS
32.
The Public Prosecutor by writing under his hand may appoint any advocate or
person employed in the public service, including any
police officer, to be a
state prosecutor for the purpose of any case or class of
case.
CERTAIN
OFFENCES MAY BE PROSECUTED BY PUBLIC OFFICER
33.
In any prosecution for an offence under any law other than the Penal Code, the
Public Prosecutor may permit any public officer having
legal or administrative
responsibility for the enforcement of such law to conduct the prosecution,
notwithstanding that he has not
been appointed a state
prosecutor.
Institution
of
Proceedings
Making
of Complaint
INSTITUTION
OF PROCEEDINGS
34.
Proceedings shall be instituted by the making of a
charge.
COMPLAINT
AND CHARGE
35. (1) Any person who believes from reasonable and probable cause that an offence has been committed by any person may make a complaint thereof to a prosecutor.
(2) A complaint shall be made under oath and may be made orally or in writing but if made orally shall be reduced to writing by the prosecutor and, in either case, shall be signed by the complainant and the prosecutor.
(3) Upon receiving any such
complaint, the prosecutor may, if the complaint discloses an offence, draw up or
cause to be drawn up
and shall sign a charge containing a statement of the
offence with which the accused is charged. The prosecutor shall then present
the
complaint and the charge to a judicial
officer.
ISSUE
OF SUMMONS OR WARRANT
36. (1) Upon receiving a complaint and a charge made in accordance with the provisions of section 35, the judicial officer may in his discretion issue either a summons or a warrant to compel the attendance of the accused person before a court having jurisdiction to try the offence alleged to have been committed.
(2) The validity of any proceedings taken in pursuance of a complaint or charge shall not be affected either by any defect in the complaint or charge or by the fact that a summons or warrant was issued without a complaint or charge.
(3) A summons or warrant may
be issued on a Sunday or a public
holiday.
PERSON
ARRESTED WITHOUT WARRANT HOW TO BE DEALT WITH
37. (1) Where a person who has been arrested without a warrant is brought before a court, the judicial officer before whom the person is brought shall draw up or cause to be drawn up and shall sign a charge containing a statement of the offence with which such person is charged, unless such a charge shall be signed and presented by a prosecutor.
(2) The court, if it has jurisdiction, may try the offence alleged to have been committed.
(3) If the accused person is brought before a Magistrate's Court and such court has no jurisdiction to try him on the charge drawn up or presented under subsection (1), the court may release him on bail or remand him in custody for a period not exceeding 14 days pending the initiation of a preliminary enquiry under the provisions of Part VII.
(4) If at the end of such
period of bail or custody, the prosecutor has not initiated a preliminary
inquiry under the provisions of
Part VII or taken steps to have the accused
person appear or be brought before the Supreme Court, or taken any action to
terminate
the proceedings under the provisions of section 29 or otherwise, the
Magistrate's Court shall direct that the accused person appear
or be brought
before the Supreme Court and may release the accused person from custody on bail
or remand him in custody to appear
or be brought before the Supreme Court in
order that the Supreme Court may direct whether he should be
discharged.
Processes
to Compel the Appearance of Accused Persons summons
FORM AND CONTENTS OF SUMMONS
38. (1) Every summons issued by a judicial officer under this Code shall be in writing, in duplicate and signed by such judicial officer.
(2) Every summons shall be
directed to the person summoned and shall require him to appear at a time and a
place to be therein stated
before a court having jurisdiction to deal with the
complaint or charge. It shall state shortly the offence with which the person
against whom it is issued is
charged.
SERVICE
OF SUMMONS
39. (1) Every summons shall be served by a police officer or by an officer of the court or other public officer and shall, if practicable, be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons.
(2) The officer shall, after serving the summons, ask the person summoned whether he can read and understand it; if so requested or if it appears to him to be desirable or necessary, he shall explain the substance thereof in clear and simple terms to the person summoned.
(3) Every person on whom a
summons is so served shall, except where prevented by infirmity or otherwise, be
required by the serving
officer to sign or if illiterate to make his mark for
the purpose of acknowledging receipt thereof on the back of the duplicate
retained
by the serving
officer.
SERVICE
WHEN PERSON SUMMONED CANNOT BE FOUND
40. (1) Where a person summoned cannot by the exercise of due diligence be found, the summons may be served by leaving 1 of the duplicates for him with some adult member of his family or with his employer; and the person with whom the summons is so left shall, if so required by the serving officer, acknowledge receipt thereof in the manner provided for in section 39(3).
(2) If any person with whom a summons is left pursuant to this section fails or refuses to take all reasonable steps to cause the same to be served on the person summoned he shall be guilty of contempt of court.
PROCEDURE WHEN SERVICE CANNOT BE EFFECTED AS BEFORE PROVIDED
41.
If service in the manner provided by
section 39 or 40 cannot by the exercise of due diligence be effected, the
serving officer shall
affix 1 of the duplicates of the summons to some
conspicuous part of the house or homestead in which the person summoned
ordinarily
resides, and thereupon the summons shall have been duly
served.
SERVICE
ON BODY CORPORATE
42. (1) Service of a summons on a body corporate may be effected by serving it on the secretary, clerk, local manager or other principal officer of the body or by registered letter addressed to the registered office or office of the secretary, clerk or local manager of the body in the Republic. In the latter case service shall be considered to have been effected when the letter would arrive in ordinary course of post.
(2) A person upon whom a
summons is served in accordance with subsection (1) shall acknowledge receipt
thereof on behalf of the body
corporate he represents in the manner provided for
in section
39(3).
PROOF OF
SERVICE
43.
Where the officer who has served a summons is not present at the hearing of the
case, an affidavit purporting to be made before the
registrar or a judicial
officer that such summons has been served and a duplicate of the summons
purporting to be endorsed in the
manner herein before provided by the person to
whom it was delivered or tendered or with whom it was left shall be admissible
in
evidence, and the statements made therein shall be deemed to be correct
unless and until the contrary is
proved.
POWER
TO DISPENSE WITH PERSONAL ATTENDANCE OF ACCUSED
44. (1) Subject to subsection (2) whenever a judicial officer issues a summons in respect of any offence punishable by imprisonment for 2 years or less, he may if he sees reason to do so, dispense with the personal attendance of the accused, if such accused pleads guilty in writing or appears by an advocate, and shall do so without conditions when the offence with which the accused is charged is punishable only by fine or by a term of imprisonment not exceeding 3 months or both.
(2) A court trying any case may in its discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner herein before provided.
(3) If the court imposes a fine on an accused person whose personal attendance has been dispensed with under this section without having sentenced him to imprisonment in default of payment, and such fine is not paid within the time prescribed for payment the court may issue a summons calling upon the convicted person to show cause why he should not be committed to prison for such term as the court may then fix within the limits prescribed by law. If such convicted person does not attend upon the return of such summons the court may forthwith issue a warrant and commit such person to prison for such term as the court may then fix.
(4) Whenever the attendance of
an accused person has been dispensed with and his attendance is subsequently
required, the proceedings
may be adjourned for such period as is necessary for
such purpose.
Warrant
of arrest
WARRANT IN CASE OF AVOIDANCE OF SERVICE
45. (1) Where a prosecution has been instituted and a judicial officer has reason to believe that the accused is avoiding service or that he is unlikely to obey the summons or surrender himself into custody or attend the resumed hearing, as the case may be, the judicial officer may issue a warrant for the arrest of the accused.
(2) An application for a
warrant under this section may be made either in writing by a public prosecutor
or orally by any police officer
or by the complainant in which case the judicial
officer shall examine the applicant and any necessary witness on oath or
affirmation
and record the substance of his
information.
WARRANT
ON DISOBEDIENCE TO SUMMONS
46.
If the accused does not appear at the time and place appointed in and by the
summons, and his personal attendance has not been dispensed
with under section
44, the court may issue a warrant to arrest him and cause him to be brought
before such court; but no such warrant
shall be issued unless a complaint has
been made upon
oath.
FORM,
CONTENTS AND DURATION OF WARRANT
47. (1) Every warrant of arrest shall be under the hand of the judicial officer issuing it.
(2) Every warrant shall state shortly the offence with which the person against whom it is issued is charged and shall name or otherwise describe such person, and it shall order the person or persons to whom it is directed to arrest the person against whom it is issued and bring him before the court having jurisdiction in the case to answer the charge therein stated and to be further dealt with according to law.
(3) Every such warrant shall
remain in force until it is executed or until it is cancelled by the judicial
officer who issued it or
if he is unable so to do by another judicial
officer.
POWER
TO DIRECT RECOGNIZANCE TO BE TAKEN
48. (1) A judicial officer issuing a warrant for the arrest of any person in respect of any offence other than intentional homicide or an offence against the external security of the Republic may in his discretion direct by endorsement on the warrant that, if such person enters into a written recognizance with or without conditions for his attendance before the court at a specified time and thereafter until otherwise directed by the court, the officer to whom the warrant is directed shall release such person from custody.
(2) The endorsement shall state –
(a) any conditions of the release of such person; and
(b) the time at which he is to attend before the court.
WARRANT, TO WHOM DIRECTED
49. (1) A warrant of arrest may be directed to one or more police officers, or generally to all police officers but a judicial officer issuing such a warrant may, if its immediate execution is necessary, and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.
(2) When a warrant is directed
to more officers or persons than one, it may be executed by all or by any one or
more of
them.
EXECUTION
OF WARRANT DIRECTED TO POLICE OFFICER
50.
A warrant directed to any police officer may also be executed by any other
police officer whose name is endorsed upon the warrant
by the officer to whom it
is directed or endorsed.
NOTIFICATION
OF SUBSTANCE OF
WARRANT
51.
The police officer or other person
executing a warrant of arrest shall notify the substance thereof to the person
to be arrested and,
if so required, shall show him the warrant.
PERSON ARRESTED TO BE BROUGHT BEFORE THE COURT WITHOUT DELAY
52.
The police officer or other person executing a warrant of arrest shall, subject
to the provisions of section 48, without unnecessary
delay bring the person
arrested before the court before which he is required by law to produce such
person.
WARRANT
MAY BE EXECUTED AT ANY TIME AND PLACE
53.
Subject to any provision of any law to
the contrary, a warrant of arrest may be executed at any time of the day or
night or on any
day of the year, and at any place in the
Republic.
IRREGULARITIES
IN WARRANT
54.
Any irregularity or defect in the
substance or form of a warrant, and any variance between it and the written
complaint or information,
or between either and the evidence produced on the
part of the prosecution at any inquiry or trial shall not affect the validity
of
any proceedings at or subsequent to the hearing of the case, but if any such
variance appears to the court to be such that the
accused has been thereby
deceived or misled, such court may, at the request of the accused, adjourn the
hearing of the case to some
future date and in the meantime remand the accused
or release him from custody.
Search Warrants
POWER
TO ISSUE SEARCH WARRANTS
55.
Where it is proved on oath to a judicial
officer that in fact or according to reasonable suspicion anything upon, by or
in respect
of which an offence has been committed or anything which is necessary
for the conduct of an investigation into any offence is in
any building, ship,
aircraft, vehicle, box, receptacle or other place, the judicial officer may by
the issue of a search warrant
authorise a police officer or other person therein
named to search the building, ship, aircraft, vehicle, box, receptacle or place
named or described in the warrant for any such thing, and if anything searched
for be found, to seize it and detain it for use in
evidence.
EXECUTION
OF SEARCH WARRANT
56.
Every search warrant may be issued on any day including Sunday or public holiday
and may be executed on any day between the hours
of sunrise and sunset but the
judicial officer may, by the warrant, in his discretion, authorise the police
officer or other person
to whom it is addressed to execute it at any
hour.
PERSON IN
CHARGE OF CLOSED PLACE TO ALLOW ENTRY
57. (1) Whenever any building or other place liable to search is closed, any person residing in or being in charge of such building or place, shall on demand of the police officer or other person executing a search warrant, and on production of the warrant, allow him free entry thereto and exit therefrom and afford all reasonable facilities for a search therein.
(2) If entry to, or exit from, such building or other place cannot be obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by section 5 or 6.
(3) Where any person in or
about such building or place is reasonably suspected of concealing about his
person any article for which
search should be made, such person may be searched
and if such person is a woman the provisions of section 10 shall be
observed.
DETENTION
OF PROPERTY SEIZED
58. (1) When any thing is seized in accordance with sections 55, 56 and 57 it may be detained until the conclusion of the case, reasonable care being taken for its preservation.
(2) If any appeal is made, the court may order it to be further detained for the purpose of the appeal.
(3) If no appeal is made, the
court shall direct such thing to be restored to the person from whom it was
taken, unless the court
sees fit and is authorised or required by law to dispose
of it
otherwise.
PROVISIONS
APPLICABLE TO SEARCH WARRANTS
59.
The provisions of sections 47(1), 47(3), 49, 50 and 53 shall, so far as may be,
apply to all search warrants issued under section
55.
Provisions
as to Bail
POWER IN CERTAIN CASES TO RELEASE FROM CUSTODY
60. (1) When any person, other than a person accused of an offence punishable by life imprisonment, is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to enter into a bond in writing, with or without conditions, for his subsequent appearance before the court, such person may be temporarily released from custody on bail.
(2) The conditions of such release shall be fixed with due regard to the circumstances and shall not be oppressive or unreasonable.
(3) Notwithstanding anything
contained in subsection (1) the Supreme Court may in any case direct that any
person be released from
custody on bail or that the conditions required by the
Magistrate's Court or a police officer be amended so as to be less
onerous.
BOND
FOR APPEARANCE
61.
Before any person is released temporarily from custody a bond in writing subject
to such conditions if any, as the court or police
officer, as the case may be,
thinks necessary, shall be executed by such person, on condition that such
person shall attend at the
time and place mentioned in the undertaking and shall
continue to attend until otherwise directed by the court or police officer,
as
the case may
be.
SPECIAL
CONDITIONS OF BAIL
62. (1) In releasing any person from custody on bail on his own recognizance a court may impose such conditions as it may consider fit.
(2) The conditions on which any person is released from custody on bail may include conditions appearing to the court to be likely to result in his appearance at the time and place required or to be necessary in the interests of justice or for the prevention of crime.
(3) When a court releases, or
directs the release of, any person from custody on bail and imposes a condition
under subsection (2)
it shall not require him to find any surety in respect of
that
condition.
DISCHARGE
FROM CUSTODY OF PERSON RELEASED
63. (1) As soon as a bond has been executed in accordance with section 61 the person concerned shall be released, and when he is in prison the court ordering his release from custody shall issue an order of release to the officer in charge of the prison, and such officer on receipt of the order shall release him.
(2) Nothing in this section or in section 60 shall require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.
POWER TO ORDER SUFFICIENT CONDITIONS WHEN CONDITIONS FIRST IMPOSED ARE INSUFFICIENT
64.
If, through mistake, fraud or otherwise, insufficient conditions have been
imposed, or if they afterwards become insufficient, the
court may issue a
warrant of arrest directing that a person released from custody on bail be
brought before it and may order him
to comply with sufficient conditions, and on
his failing so to do may commit him to
prison.
COMMITTAL
OF PERSON BOUND BY BAIL BOND
65. If it appears to any court from information on oath, that any person bound by a bond to appear is about to leave the Republic, the court may cause him to be arrested and may commit him to prison until the trial, unless the court shall see fit to release him from custody on bail upon further conditions.
STATEMENT OF RIGHTS TO BE READ ON REFUSAL OF BAIL BY MAGISTRATE
66. Upon the refusal by any Magistrate's Court of an application for bail, the magistrate shall state the grounds for such refusal and shall read aloud to the applicant in open court the following statement -
"Your application for release from custody on bail having been refused by this Court, you now have the right to make a fresh application for bail to the Supreme Court. If you so desire, the matter will be referred immediately by this Court to the Supreme Court, which will review your application as soon as possible. You will remain in custody in the meantime but will suffer no disadvantage by reason of making a further application to the Supreme Court. Do you wish the Supreme Court to consider your application for release from custody on bail?"
PRESIDING MAGISTRATE RESPONSIBLE FOR FORWARDING FILE TO SUPREME COURT
67.
If an applicant for bail informs the presiding magistrate that he wishes his
application to be considered by the Supreme Court, that
magistrate shall be
personally responsible for ensuring that the relevant case file and other
documents and material are forwarded
without delay to the Registrar of the
Supreme
Court.
REPORT
BY PRESIDING MAGISTRATE TO SUPREME COURT
68.
The file forwarded to the Supreme Court pursuant to section 67 shall include a
written report by the magistrate addressed to the
Supreme Court stating the
grounds for refusing bail and setting out in detail the evidence or information
upon which his conclusions
were based. The report shall be dated and signed by
the
magistrate.
DECISION
OF SUPREME COURT ON BAIL
69.
The decision of the Supreme Court on an application referred to it pursuant to
section 67 and 68 shall be delivered in writing and
copies thereof shall be
issued without delay to the appropriate magistrate and all parties to the
proceedings. If the Supreme Court
shall order that the applicant be released
from custody on bail, the magistrate shall be personally responsible for
ensuring that
a copy of the decision is served upon the officer in charge of the
prison or other place where he is detained and that he is forthwith
produced
before him in court for release for such period and upon such conditions as the
magistrate shall
determine.
NO
APPEAL AGAINST ORDER REFUSING BAIL
70. There shall be no right of appeal under Part XI against the order of a judicial officer refusing the grant of bail to any person.
PART IV
FURTHER
PROVISIONS CONCERNING ALL CRIMINAL TRIALS
Charges and Informations
OFFENCES TO BE SPECIFIED IN CHARGE OR INFORMATION WITH NECESSARY PARTICULARS
71.
Every charge or information shall contain, and shall be sufficient if it
contains, a statement of the specific offence or offences
with which the accused
person is charged, together with such particulars as may be necessary for giving
reasonable information as
to the nature of the offence
charged.
JOINDER
OF COUNTS IN A CHARGE OR INFORMATION
72. (1) More than 1 offence may be put together in the same charge or information if the offences charged are founded on the same facts or form, or are a part of a series of offences of the same or similar character.
(2) Where more than 1 offence is put in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.
(3) Where, before trial or at
any stage of a trial, the court is of opinion that a person accused may be
embarrassed in his defence
by reason of being charged with more than 1 offence
in the same charge or information, or that for any other reason it is desirable
to direct that the person should be tried separately for any 1 or more offences
put in a charge or information, the court may order
a separate trial of any
count or counts of such charge or
information.
JOINDER
OF 2 OR MORE ACCUSED IN CHARGE OR INFORMATION
73. The following persons may be joined in 1 charge or information and may be tried together -
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of complicity, or of an attempt to commit that offence;
(c) persons accused of more offences than 1 of the same kind (that is to say, offences punishable with the same amount of punishment under the same provision of the Penal Code or of any other law) committed by them jointly;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of any offence involving dishonesty and of aiding, counselling or procuring the commission of or of attempting to commit any such offence;
(f) persons accused of any offence relating to counterfeit currency and of complicity or of attempting to commit any such offence.
RULES
FOR THE FRAMING OF CHARGES AND INFORMATIONS
74. The following provisions shall apply to all charges and informations and, notwithstanding any rule of law or practice, a charge or an information shall, subject to the provisions of this Code not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code -
(a) a count of a charge or an information shall commence with a statement of the offence charged, called the statement of offence;
(b) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and if the offence charged is one created by enactment, shall contain a reference to the provision of the enactment creating the offence;
(c) after the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:
Provided that where any rule of law limits the particulars of an offence which are required to be given in a charge or an information, nothing in this paragraph shall require more particulars to be given than those so required;
(d) forms approved by the Chief Justice or forms conforming thereto as closely as possible shall be used in cases to which they are applicable, and in other cases forms to the like effect or conforming thereto as closely as possible shall be used, the statement of offence and the particulars of offence being varied according to the circumstances in each case;
(e) where a charge or an information contains more than 1 count, the counts shall be numbered consecutively.
MANNER OF PROOF OF PREVIOUS CONVICTIONS OR ACQUITTALS
75. (1) In any trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other manner provided by any law for the time being in force -
(a) By an extract certified, under the hand of the officer having the custody of the records of the court in which judgment for such conviction or acquittal was given to be a copy of the sentence or order; or
(b) In case of a conviction, either by a certificate signed by the officer in charge of the prison in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered; together with, in each case, evidence as to the identity of the accused person so convicted or acquitted.
(2) Previous conviction in any
place outside the Republic may be proved by the production of a certificate
purporting to be given
under the hand of a police officer in the country where
judgment for the conviction was given, containing a copy of the sentence
or
order, and the fingerprints or photographs of the fingerprints of the person so
convicted together with evidence that the fingerprints
of the person so
convicted are those of the accused person. Such a certificate as aforesaid shall
be prima
facie evidence of all facts stated
therein without proof that the officer purporting to sign it did in fact sign it
and was empowered to
do so.
Compelling
Attendance of Witnesses.
WITNESS SUMMONS
76.
If it appears to a court having cognizance of a criminal cause or matter that
material evidence can be given by or is in the possession
of any person, it
shall be lawful for the court to issue a summons to such person requiring his
attendance before the court or requiring
him to bring and produce to the court
for the purpose of evidence all documents and writings in his possession or
power which may
be specified or otherwise sufficiently described in the
summons.
WARRANT
FOR WITNESS WHO DISOBEYS SUMMONS
77.
If without sufficient excuse a witness does not appear in obedience to a summons
issued pursuant to section 76 the court, on proof
of the proper service of the
summons a reasonable time before, may issue a warrant to bring him before the
court at such time and
place as shall be therein
specified.
WARRANT
FOR WITNESS IN FIRST INSTANCE
78.
If the court is satisfied by evidence on oath that such person will not attend
unless compelled to do so, it may at once issue a
warrant for the arrest and
production of the witness before the court at a time and place to be therein
specified.
MODE
OF DEALING WITH WITNESS ARRESTED UNDER WARRANT
79.
When any witness is arrested under a warrant the court may, on his entering into
a recognizance in writing to the satisfaction of
the court for his appearance at
the hearing of the case, order him to be released from custody, or shall, on his
failing to furnish
such recognizance, order him to be detained for production at
such
hearing.
POWER
TO ORDER PRODUCTION OF PRISONER AS WITNESS
80. (1) Any court desirous of examining as a witness, in any case pending before it, any person confined in any prison may issue an order to the officer in charge of the prison requiring him to bring such prisoner in proper custody, at a time to be named in his order, before the court for examination.
(2) An officer in charge of a
prison on receipt of an order under subsection (1) act in accordance therewith
and shall provide for
the safe custody of the prisoner during his absence from
the prison for the purpose aforesaid.
Presumption of Innocence
STATEMENT
OF PRESUMPTION TO BE READ TO ACCUSED
81. In every criminal trial in which a plea of not guilty has been entered, the judicial officer presiding shall, before the prosecution case is opened, read aloud to the accused the following statement of the presumption of innocence -
"In this trial you will be presumed to be innocent unless and until the prosecution has proved your guilt beyond reasonable doubt. It is not your task to prove your innocence. If at the end of the trial, any reasonable doubt exists as to your guilt, you will be deemed to be innocent of the charge and will be acquitted."
and
shall record such step in the proceedings.
Examination of Witnesses
POWER TO SUMMON MATERIAL WITNESS OR EXAMINE PERSON PRESENT
82. (1) Any court may at any stage of any trial or other proceeding under this Code summon or call any person as a witness, or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.
(2) The prosecutor or the
defendant or his advocate, shall have the right to cross-examine any such
person, and the court shall adjourn
the case for such purpose if it considers
necessary.
EVIDENCE
TO BE GIVEN ON OATH
83. (1) Subject to subsection (2) and save as otherwise provided, every witness in any criminal cause or matter shall be examined upon oath and the court before which any witness shall appear shall have full power and authority to administer the usual oath.
(2) Where any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, although not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.
(3) Where evidence admitted by
virtue subsection (2) is given on behalf of the prosecution in any proceedings,
the accused shall not
be liable to be convicted of the offence unless that
evidence is corroborated by other material
evidence.
PROOF
BY FORMAL ADMISSION
84. (1) Subject to subsection (2) any fact of which oral evidence may be given in any criminal trial may be admitted for the purpose of that trial by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in that trial of the fact admitted.
(2) An admission under this section -
(a) may be made before or during the trial;
(b) if made otherwise than in court, shall be in writing;
(c) if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;
(d) if made on behalf of a defendant who is an individual, may be made by his advocate;
(e) if made at any stage before the trial by a defendant who is an individual, must be approved by his advocate (whether at the time it was made or subsequently) before or during the trial in question.
REFRACTORY WITNESSES
85. (1) Whenever any person, appearing either in obedience to a summons or by virtue of a warrant or being present in court and being verbally required by the court to give evidence -
(a) refuses to be sworn; or
(b) having been sworn, refuses to answer any question put to him; or
(c) refuses or neglects to produce any document or thing which he is required to produce,
without in any such case offering any sufficient excuse for such refusal of neglect, the court may adjourn the case for any period not exceeding 8 days, and may in the meantime commit each person to prison, unless he sooner consents to do what is required of him.
(2) If such person, upon being brought before the court at or before such adjourned hearing, again refuses to do what is required of him, the court may, if it sees fit, again adjourn the case and commit him for the like period, and so again from time to time until such person consents to do what is so required of him.
(3) Nothing herein contained
shall affect the liability of any such person to any other punishment or
proceeding for refusing or neglecting
to do what is so required of him, or shall
prevent the court from disposing of the case in the meantime according to any
other sufficient
evidence taken before
it.
REPORT OF
GOVERNMENT ANALYST OR PRESCRIBED EXPERT
86. (1) Any document, purporting to be a report of a Government analyst or any prescribed expert, upon any matter or thing submitted to him for examination or analysis and report may be used as evidence of the facts stated therein in any trial or other proceeding under this Code.
(2) When any report is so used the court may, if it thinks fit, summon and examine the analyst or the prescribed expert as to the subject-matter thereof or may cause written interrogatories to be submitted to him for reply, and such interrogatories and any reply thereto, purporting to be a reply from such person, may also be used as evidence in such trial or other proceeding.
(3) Nothing in this section shall affect any other law under which any certificate or other document is made admissible in evidence, and the provisions of this section are additional to, and not in substitution for, any such law.
(4) In this section
"prescribed expert" means such person as, may be prescribed for the purposes of
this section by the Minister by
Order.
TAKING
OF EVIDENCE IN ABSENCE OF THE ACCUSED
87.
If it is proved that an accused person has absconded and that there is no
immediate prospect of arresting him, the court competent
to try such person for
the offence complained of may, in his absence, examine the witnesses (if any)
produced on behalf of the prosecution,
and record their depositions. Any such
depositions may, on the arrest of such person, be given in evidence against him
on the trial
for the offence with which he is charged if the deponent is dead or
incapable of giving evidence, or beyond the limits of the Republic,
or his
attendance cannot be procured without an amount of delay, expense or
inconvenience which, under the circumstances of the case,
would be
unreasonable.
Evidence for Defence
STATEMENT
OF RIGHTS OF ACCUSED TO BE READ ALOUD
88. In every trial in which a plea of not guilty has been entered, at the close of the case for the prosecution, and if the court shall decide that there is a prima facie case made out against the accused, the presiding judicial officer shall read aloud to the accused, whether or not he is represented by an advocate, the following statement -
"In making your defence in this trial, you are entitled, in addition to calling other persons as witnesses, to give evidence yourself on your own behalf, upon oath or affirmation and subject to cross-examination by the prosecution. However you are not obliged to give evidence and may elect instead to remain silent. If you do not choose to give evidence, this will not of itself lead to an inference of guilt against you.”
and
shall record this step in the
proceedings.
COMPETENCY
OF ACCUSED AND HUSBAND OR WIFE AS WITNESSES
89. (1) Subject to the rules contained in subsection (2) every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person.
(2) The following rules shall apply to the witnesses referred to in subsection (1) -
(a) a person charged with an offence shall not be called as a witness pursuant to this section except upon his own application;
(b) the failure to give evidence of any person charged with an offence or of the wife or husband, as the case may be, of the person so charged, shall not be made the subject of any comment by the prosecution;
(c) the wife or husband of the person charged with an offence shall not be called as a witness except upon the application of the person so charged;
(d) nothing in this section shall make a husband compellable to disclose any communication made to him by his wife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage;
(e) a person charged and giving evidence as a witness pursuant to this section may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged;
(f) a person charged and called as a witness pursuant to this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he is of bad character or has committed or been convicted of or been charged with any offence other than that with which he is then charged.
ORDER OF DEFENCE W