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bruneilawsby aturio
In force2021 Revised Edition
Contents

Chapter XLIV

438R. Evidence

(1)

For the purposes of this Chapter, the Court of Appeal may -

(a)

order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it to be necessary for the determination of the appeal by the Public Prosecutor;

(6)

order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal, whether or not he was called in those proceedings; and

(c)

subject to subsection (3), receive the evidence, if tendered, of any witness.

(2)

Without prejudice to subsection (I), where the evidence is tendered to the Court of Appeal, it shall, unless it is satisfied that the evidence, if received would not afford any ground for allowing the appeal, exercise its powers of receiving it if -

(a)

it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings fiom which the appeal lies on an issue which is the subject of the appeal; and

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Criminal Procedure Code

(b)

it is satisfied that it was not adduced in those proceedings but that there is a reasonable explanation for the failure to adduce it.

(3)

Subsection (l)(c) applies to any witness who is competent but not compellable, and applies also to the respondent's husband or wife where the Public Prosecutor makes an application for that purpose and the evidence of the husband or wife could not have been given in the proceedings from which the appeal lies except on such an application.

(4)

For the purposes of this Chapter, the Court of Appeal may order the examination of any witness whose attendance might be required under subsection (l)(b) to be conducted, in manner provided by rules and orders made under section 44 1, before any Judge or other person appointed by the Court of Appeal for that purpose, and allow the admission of any depositions so taken as evidence before the Court of Appeal.

Effect of appeal on sentence 438s.

(1)

The time during which a respondent is detained in custody pending the determination of an appeal by the Public Prosecutor shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence of imprisonment which the

Court of Appeal may impose.

(2)

Where the Court of Appeal gives a contrary direction under subsection (I), it shall state its reasons for doing so.

(3)

The term of any sentence passed by the Court of Appeal shall, unless the Court of Appeal otherwise directs, begin to run from the time when it would have begun to run if passed in the proceedings from which the appeal lies.

Restitution 43813

(1)

The operation of an order for the restitution of property to any person made on an acquittal by the High Court shall (unless the trial

Court directs to the contrary in any case in which, in its opinion, the title to the property is not in dispute) be suspended -

(a)

in any case, until the expiration of 28 days from the date of the acquittal; and

(b)

where notice of appeal is given by the Public Prosecutor within 28 days from the date of the acquittal, until the determination of the appeal.

(2)

In cases where the operation of such an order is suspended until the determination of the appeal, the order shall not take effect as to the property in question if the acquittal is quashed on appeal.

a

(3)

Provision may be made by rules and orders made under section 441 for securing the safe custody of any property, pending the suspension of the operation of any such order.

(4)

The Court of Appeal may by order annul or vary any order made by the trial Court for the restitution of 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.

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Chapter XLV

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