Criminal Appeal Act 1952

[20 February 1952]

[preamble and words of enactment omitted]

Interpretation

1 (1) In this Act—

"appeal" means an appeal to the Supreme Court under this Act in respect of a charge of an offence heard before, and deter mined by, a court of summary jurisdiction;

"appellant" includes any person who has a right of appeal under section 3, 4, 5 or 6 and who wishes to appeal under this Act;

"compensation order" means an order made by a court of sum mary jurisdiction requiring a person convicted of an offence by that court to pay to any other person damages for injury or compensation for loss arising out of the act or omission constituting the offence, being a compensation order within the meaning of section 560 of the Criminal Code [title 8 item 31];

"costs of appeal" has the meaning given in section 21(2) ;

"notice of appeal" means a notice of appeal duly given under section 9;

"order for the payment of costs", in relation to any criminal pro ceedings before a court of summary jurisdiction, means an order made by the court of summary jurisdiction requiring any person to pay any of the costs incidental to those pro ceedings;

"respondent," in relation to an appeal, means—

(i) where the appellant was the defendant in the criminal proceedings in respect of which notice of appeal was given, then the person who was the in formant in those proceedings; or

(ii) where the appellant was the informant in criminal proceedings as aforesaid, then the person who was the defendant in those proceedings;

"restitution order" includes any order made under section 562 of the Criminal Code [title 8 item 31] by a court of summary ju risdiction requiring the restitution of property.

(2) For the purposes of this Act, "sentence" shall be deemed to include—

(a) any order made on a conviction by a court of summary jurisdiction, being an order relating to the person con victed or to his wife or children, not being—

(i) an order for absolute discharge; or

(ii) an order for conditional discharge or a probation order; or

(iii) a compensation order; or

(iv) an order for the payment of costs; or

(v) a restitution order; or

(vi) an order made under section 12 of the Care and Protection of Animals Act 1975 [title 25 item 16] (which section enables a court to order the de struction of an animal); or

(vii) an order made in pursuance of any enactment under which the court has no discretion as to the making of the order or as to the terms thereof, or

(viii) an order committing a person to the Supreme Court for sentence; and

(b) a recommendation for the making of a deportation order under Part VII of the Bermuda Immigration and Protec tion Act 1956 [title 5 item 16], made on a conviction by a court of summary jurisdiction and relating to the person convicted;

but any power of the Supreme Court, acting in its appellate jurisdiction under this Act, to impose a sentence shall be deemed to include a power, subject to this Act, to make any such order as aforesaid (including any order mentioned in subparagraphs (i), (ii), (iii), (iv), (v), (vi), (vii), or (viii) of paragraph (a) and to include a power to make a recommendation as mentioned in paragraph (b).

In this subsection "order for conditional discharge" and "probation order" have the meanings respectively given in section 3 of the Criminal Code [title 8 item 31].

(3) Nothing in this Act shall affect Her Majesty's Prerogative of mercy or any power vested in the Governor acting as the representative of Her Majesty, to exercise such Royal Prerogative on behalf of Her Majesty, or to grant a pardon either free or subject to conditions or any remission of sentence, or any respite of the execution of any sentence.

Appeals from courts of summary jurisdiction to Supreme Court

2 The Supreme Court, subject to and in accordance with this Act, shall have an appellate jurisdiction in respect of appeals against convic tions, sentences, orders and other decisions of courts of summary juris diction (including Children's Courts) arising out of a charge of an offence heard before and determined by such courts.

Conviction or sentence; appeal

3 (1) A person convicted of an offence by a court of summary ju risdiction shall have a right of appeal to the Supreme Court in the man ner provided by this Act against his conviction or sentence.

(2) A person upon whom sentence has been imposed by a court of summary jurisdiction in respect of an offence of which he was con victed by another court of summary jurisdiction shall have a like right of appeal against that sentence.

(3) Notwithstanding anything in subsection (1) or (2), a person shall not have a right of appeal in respect of his sentence where under any enactment that person was, after his conviction of an offence by a court of summary jurisdiction, committed for sentence to the Supreme Court and sentenced by the Supreme Court for that offence.

(4) In this section "convicted", in relation to the commission of an offence by any person, includes—

(a) a conviction upon that person's plea of guilty of the, of fence; or

(b) a conviction upon that person being dealt with ex parte whether or not he has admitted to the court the truth of the information;

and "conviction" shall be construed ac cordingly.

Point of law; appeal by informant

4 A person who was the informant in respect of a charge of an of fence heard before and determined by a court of summary jurisdiction
shall have a right of appeal to the Supreme Court, in the manner pro vided by this Act, upon a ground which involves a question of law alone—

(a) where the information was dismissed, then against any decision in law which led the court of summary jurisdic tion to dismiss the information;

(b) in any other case, against any decision in law which led the court of summary jurisdiction, after convicting the defendant in those proceedings, to impose a particular sentence or to deal with him in a particular way.

Sentence; appeal by informant

4A Any person who was the informant in respect of a charge of an offence heard before and determined by a court of summary jurisdiction may, in relation to any sentence imposed by that court, appeal to the Supreme Court against the sentence, on the ground that the sentence so imposed is manifestly inadequate.

Compensation order; appeal

5 Notwithstanding anything in sections 1 to 4, where, in connec tion with the conviction of any person of an offence by a court of sum mary jurisdiction, it was competent for that court, on application thereto, to make a compensation order requiring the person so convicted to pay to any other person any sum by way of damages or compensation, then in any such case the person so convicted or any other person who was, or who might have been, awarded any sum by way of damages or com pensation, shall have a right of appeal to the Supreme Court in the man ner provided by this Act—

(a) in the case of the person so convicted, where a compen sation order was made by the court of summary juris diction—

(i) then against the making of the order; or

(ii) against the amount of the sum required to be paid under the order; or

(b) in the case of such other person—

(i) where the making of a compensation order was refused by the court of summary jurisdiction, then against the refusal to make such an order; or

(ii) where a compensation order was made by the court of summary jurisdiction, then against the amount of the sum required to be paid under the order.

Order for payment of cost; appeal

6 Notwithstanding anything in sections 1 to 5, a person convicted of an offence by a court of summary jurisdiction, or a person who was the informant in respect of a charge of an offence heard before and de termined by a court of summary jurisdiction, shall each have a right of appeal to the Supreme Court in the manner provided by this Act, upon a ground which involves a question of law alone—

(a) where an order for the payment of costs was made by the court of summary jurisdiction—

(i) then against the making of the order; or

(ii) against the amount of the sum required to be paid under the order; or

(b) where the making of an order for the payment of cost was refused by the court of summary jurisdiction, then against the refusal to make such an order.

Time for giving notice of appeal

7 (1) Without prejudice to section 8, where a person who has a right of appeal by virtue of section 3, 4, 5 or 6 wishes to appeal to the Supreme Court, he shall give notice of appeal within the periods respec tively specified in this section.

(2) Subject to subsections (3) and (5), an appellant who wishes to appeal under section 3 against his conviction or sentence shall give notice of appeal—

(a) within ten days after the day on which he was convicted; or

(b) where the court of summary jurisdiction by which he was convicted adjourned the case after conviction, then within ten days after the day on which the court sen tenced or otherwise dealt with him:

Provided that nothing in this subsection shall prevent

an appellant, in the circumstances set out in paragraph (b) from giving notice of appeal before he is sentenced or otherwise dealt with by the court of summary jurisdic tion; and where he does so give notice of appeal section 11(1) shall have effect accordingly.

(3) Notwithstanding anything in subsection (2), where an appellant—

(a) has, subsequent to his being dealt with on his conviction of an offence by a court of summary jurisdiction by way of the making of an order for conditional discharge or a probation order, been sentenced under any enactment by a court of summary jurisdiction for the offence in re spect of which the order was made; and

(b) wishes to appeal under section 3 against that sentence,

then in any such case he shall give notice of appeal within ten days after the day on which he was so sen tenced.

(4) An appellant who (having been an informant) wishes to ap peal under section 4 in connection with any decision in law of a court of summary jurisdiction shall give notice of appeal—

(a) where the appeal is in respect of a decision in law which led the court of summary jurisdiction to dismiss the in formation, then within ten days after the day on which the information was dismissed; or

(b) where the appeal is in respect of a decision in law which led the court of summary jurisdiction, after convicting an offender, to impose a particular sentence or to deal with him in any particular way, then within ten days af ter the day on which the court imposed the sentence or, as the case may be, made the order, by or under which the offender was then dealt with.

(5) Notwithstanding anything in subsection (2) or subsection (3), where a sentence imposed by a court of summary jurisdiction (being a Family Court) is a sentence of whipping then the court of summary jurisdiction shall, on imposing a sentence of whipping, ask the offender whether he wishes to appeal against that sentence and shall record the answer given by the offender; and—

(a) if the offender intimates that he wishes to appeal against the sentence of whipping, then section 11(2) shall have effect accordingly;

(b) if the offender intimates that he does not wish to appeal against the sentence of whipping, then the sentence of whipping shall be duly carried into execution;

but nothing in this subsection shall —

(i) absolve the offender, if he wishes to appeal, from compliance with any requirement of subsection (2);

(ii) abridge any right of the offender to appeal under section 3 against his conviction of the offence notwithstanding that a sentence of whipping imposed in respect of the offence has already been carried into execution.

(6) An appellant who wishes to appeal under section 5 in con nection with the making of a compensation order, or, as the case may be, in connection with a refusal to make such an order, shall give notice of appeal—

(a) where a compensation order was made, then within ten days after the day on which the order was made;

(b) where the making of a compensation order was refused, then within ten days after the day on which the making of an order was refused.

(7) An appellant who wishes to appeal under section 6 in con nection with the making of an order for the payment of costs or, as the case may be, in connection with a refusal to make such an order, shall give notice of appeal—

(a) where an order for the payment of costs was made, then within ten days after the day on which the order was made;

(b) where the making of an order for the payment of costs was refused, then within ten days after the day on which the making of an order was refused.

[section 7 amended by 1998 : 38 effective by notice in Official Gazette]

Extension of time

8 (1) Where it appears to the Supreme Court, on application made in accordance with this section, that any person wishing to appeal to the Supreme Court has failed to give notice of appeal within the period required by the section 7, the Court may, if it thinks fit, direct that any such notice of appeal previously given by the applicant after the expira tion of such period, or any such notice that may be given by him within such further time as may be specified in the direction, shall be treated as if it had been given within such period:

Provided that nothing in this subsection shall have effect in re lation to any failure of an offender on whom a sentence of whipping has been imposed by a Family Court to intimate, under section 7(5), that he wishes to appeal against that sentence.

(2) An application for a direction under subsection (1) shall be made in writing and shall be sent by the appellant to the Registrar; and, where any such direction is given by the Supreme Court, the Registrar shall give notice of the terms of the direction to the appellant and to the Senior Magistrate and to the respondent in the appeal.

(3) The powers of the Supreme Court under subsection (1) may be exercised by a judge.

[section 8 amended by 1998 : 38 effective by notice in Official Gazette]

Form of notice of appeal; service

9 (1) A notice of appeal given by an appellant under section 7 or 8—

(a) shall be in writing;

(b) shall set out the grounds of appeal;

(d) shall be signed by the appellant or by counsel on His behalf

(2) Notice of appeal shall be duly given if a notice of appeal as aforesaid is personally served upon the Senior Magistrate within the time allowed for notice of appeal to be given under this Act.

Amendment of notice of appeal

10 (1) Where it appears to the Supreme Court, on application made in accordance with this section, that it is just or expedient that any notice of appeal duly given under section 7 or section 8 should be amended in any particular, the Court may direct that any such notice of appeal shall be so amended and shall be treated as though it had been duly given in its amended form.

(3) The powers of the Supreme Court under subsection (1) may be exercised by a judge.

Effect of giving notice of appeal on sentence or order

11 (1) Where notice of appeal has been duly given by an appellant under this Act all further proceedings shall, subject to this section, be stayed; and accordingly, after notice of appeal has been given, no sen tence shall be imposed or order made pending the determination, or, as the case may be, the abandonment of the appeal.

(2) Where a court of summary jurisdiction, before notice of ap peal has been given,—

(a) has imposed a sentence; or

(b) has made a compensation order or an order for the payment of costs; or

(c) has made any order mentioned in paragraph (a) of sec tion 1(2) (including any order mentioned in sub-para graphs (ii), (v), (vi), (vii) or (viii) of that paragraph) ; or

(d) has made a recommendation mentioned in section 1(2)(b),

then, upon notice of appeal being duly given—

(i) where a sentence of imprisonment has been im posed the appellant, unless released from cus tody under section 12, shall be detained in a prison pending the determination or abandon ment of his appeal; and in any such case section 56(2) of the Criminal Code [title 8 item 31] and section 8(2) of the Prisons Act 1979 [title 10 item 32], shall have effect accordingly;

(ii) where a sentence of corrective training has been imposed by a Family Court the appellant, unless released from custody under section 12, shall be detained in a residential home operated under the Children Act 1998 [title 27 item 26] pending the determination or aban donment of the appeal; and in any such case the Young Offenders Act 1950 [title 10 item 33], shall have effect accordingly;

(iii) where a sentence of a fine has been imposed,
the payment of the fine (unless stayed under section 12) shall be enforced as though no no tice of appeal had been given, so, however, that any sums paid to a court of summary jurisdic tion in part or full payment of the fine shall not be paid by the court into the Consolidated Fund but shall be retained in the custody of the court pending the determination or abandonment of the appeal; and, where any sums as aforesaid are duly retained by the court, section 25 shall have effect with respect to their disposal upon the determination or, as the case may be, the abandonment, of the appeal:

Provided that where a person convicted by a court of summary jurisdiction has been given time in which to pay a fine the time pending the determination or abandonment of the appeal, if shorter than the time so given, shall be counted in computing time for that purpose;

(iv) where a sentence of whipping has been imposed, then, without prejudice to section 8(1), the sen tence of whipping shall not be carried into exe cution pending the determination or abandon ment of the appeal; and

(v) except as otherwise expressly provided in any Act, and subject to subsection (3), where any or der or recommendation has been made then that order or recommendation shall be sus pended and shall be deemed to be of no effect pending the determination or abandonment of the appeal.

(3) Notwithstanding anything in subsection (2)(v), where—

(a) as a result of a conviction of an offence under the Road Traffic Act 1947 [title 21 item 3], or under the Motor Car Insurance (Third Party Risks) Act 1943 [title 21 item 5], an order has been made suspending a driver's licence, or cancelling a driver's licence and declaring the person convicted to be disqualified for obtaining another licence, or declaring the person convicted disqualified for driving an auxiliary bicycle; or

(b) as a result of a conviction of an offence of cruelty to a child under section 19 of the Children Act 1998 [title 27 item 26], an order has been made under section 8 of that Act relating to the care or supervision of the child; or

(c) as a result of a conviction of an offence in respect of a foster child under the Children Act 1998 [title 27 item 26], an order has been made under section 63(2) relating to the removal of the child and placing him in the care of the Director; or

(d) as a result of a conviction of cruelty within the meaning of the Care and Protection of Animals Act 1975 [title 25 item 16], an order has been made under that Act for the destruction of an animal or for depriving the person con victed of the ownership of an animal,

then in any such case any such order made as aforesaid shall have effect pending the determination or abandonment of the appeal; and notwith standing that upon the determination of the appeal the conviction, or, as the case may be, the order as aforesaid made thereon, is quashed, or an other order is substituted for the original order, any contravention of or failure to comply with any requirement imposed by virtue of the original order shall, as respects the period pending the determination or aban donment of the appeal, be deemed to have the same effect and to create a liability to the same consequences as if notice of appeal had not been given.

[section 11 amended by 1998 : 38 effective by notice in Official Gazette]

Release pending appeal

12 (1) Where an appellant, being an offender who has been sen tenced by a court of summary jurisdiction to a term of imprisonment or to undergo corrective training, has duly given notice of appeal against the sentence or against the conviction in respect of which that sentence was imposed, a court of summary jurisdiction may, if it thinks fit, upon the application of the appellant, release him from detention in custody on such terms and conditions as it thinks fit pending the abandonment or determination of the appeal.

(2) Wherever a court of summary jurisdiction exercises the powers vested in it by subsection (1), it shall address an order to the Commissioner of Prisons for the release of the appellant from detention in custody.

(3) Where an appellant, being an offender who has been sen tenced by a court of summary jurisdiction to pay a fine, has duly given notice of appeal against that sentence or against the conviction in re spect of which that sentence was imposed, then in any such case a court of summary jurisdiction shall, upon the application of the appellant, re lease him from any obligation to pay the fine pending the determination or abandonment of his appeal upon his entering into a recognizance conditioned for his appearance before a court of summary jurisdiction—

(a) within three days after the determination of the appeal, unless—

(i) the Supreme Court quashes the conviction or sentence; and

(ii) the Supreme Court does not substitute any other conviction for the original conviction or does not impose any sentence or make an order for conditional discharge or a probation order in substitution for the original sentence; and

(iii) the Supreme Court does not make any order re quiring the appellant to pay all or any part of the costs of the appeal; or

(b) within three days after the abandonment of the appeal.

(4) Where an appellant is aggrieved by the amount of a recog nizance which he is required to enter into under this section or is other wise aggrieved with respect to such a recognizance, then the appellant may apply to the Supreme Court or to a judge to be released from deten tion in custody, or, where the appellant has been sentenced to pay a fine, then to be released from his obligation to pay the fine, pending the de termination or abandonment of his appeal; and the Court or judge may grant the application accordingly.

(5) The Supreme Court or a judge, in exercising any power conferred by subsection (4), may direct that a recognizance shall be en tered into or other security given before a court of summary jurisdiction.

(6) [deleted by 1973:107]

(7) Any time during which an appellant is released from deten tion in custody under this section shall not count as part of any term of imprisonment to which he was sentenced; or, if he was sentenced to un dergo corrective training, as part of any period of the corrective training; and where an appellant is so released from detention in custody, any term of imprisonment or, as the case may be, of corrective training, which the appellant is required to serve by reason of his sentence, (whether that sentence is the sentence imposed by the court of summary jurisdiction or is a sentence imposed on appeal by the Supreme Court in substitution for the original sentence) shall, subject to any directions which may be given by the Supreme Court, begin to run as from the day on which (after the determination or abandonment of the appeal) he is received into a prison ........[reference to a junior training school omit ted].....to serve that term.

Documents to be sent to Registrar

13 (1) Without prejudice to any power of the Supreme Court under section 15(1) to order a magistrate to furnish a supplementary report in connection with proceedings taken before him, upon an appellant duly giving notice of appeal in the manner provided by this Act, the Senior Magistrate (if he was not the magistrate comprising or presiding over the court in question) shall forthwith inform the magistrate who comprised or presided over the court in question; and the magistrate comprising the court of summary jurisdiction or, (in the case of a Family Court), pre siding over the court of summary jurisdiction before which the proceed ings in connection with which the notice of appeal was given were heard, shall, unless the appeal is earlier abandoned, prepare a report giving his opinion upon the proceedings and upon any points arising in the pro ceedings which he thinks it expedient to embody in the report, and shall (if he is not the Senior Magistrate) cause the report to be transmitted to the Senior Magistrate as soon as practicable, and in any event within five days after the day on which notice of appeal was given.

(2) Upon an appellant duly giving notice of appeal in the man ner provided by this Act, the Senior Magistrate—

(a) shall, unless the appeal is earlier abandoned, cause the following documents, together with two copies of each such document, to be transmitted to the Registrar as soon as practicable, and in any event within seven days after the day on which notice of appeal was given, that is to say,—

(i) the notice of appeal;

(ii) a copy of the record of the conviction, sentence, order or other decision in respect of which notice of appeal was given and of the record of all other proceedings (including preliminary process) connected with the criminal proceedings in question;

(iii) a copy of the notes of evidence given in the criminal proceedings aforesaid, taken in pur suance of section 16 of the Summary Jurisdic tion Act 1930 [title 8 item 34];

(iv) a copy of the judgment recorded in accordance with section 21 of the Summary Jurisdiction Act 1930;

(v) any documents or other articles entered as ex hibits in the criminal proceedings aforesaid;

(vi) the report prepared in accordance with subsec tion (1);

(vii) the recognizance (if any) entered into by the ap pellant in connection with the appeal, or a statement of any other security given, or (if the appellant is detained in custody) a statement to that effect; and

(b) shall, unless the appeal is earlier abandoned, cause copies of the documents specified in sub-paragraphs (i), (ii), (iii), (iv), (v) and (vi) of paragraph (a) to be transmitted within the same time to the appellant and to the respon dent in the appeal:

Provided that where either the appellant, or (as the case may be) the respondent, appeared in the criminal pro ceedings before the court of summary jurisdiction—

(i) by counsel instructed by the Attorney-General in that behalf; or

(ii) by a police officer authorized by the Commis sioner of Police in that behalf; or

(iii) by an officer of a Government Department or of a Government Board, acting on behalf of that Department or Board,

then in any such case the copies of the documents shall be transmitted to the Attorney-General instead of to the appellant or, (as the case may be) the respondent in the appeal; and

(c) shall cause copies of the documents specified in para graph (b) to be delivered to such other persons as are made additional parties to the appeal under section 14(2), within such times as the Supreme Court may di rect.

(3) The Registrar, upon receiving the documents and other arti cles (if any) specified in subsection (2)(a)—

(a) shall enter the appeal; and

(b) shall in due course give notice of the date upon which the appeal will be heard by the Supreme Court to the appellant and the respondent, (or in the circumstances mentioned in the proviso to subsection (2)(b), to the At torney-General and to the appellant or respondent, as the case may be), and to such other persons as are made additional parties to the appeal under section 14(2).

[section 13 amended by 1998 : 38 effective by notice in Official Gazette]

Consolidation; additional parties

14 (1) Where more than one person concerned in criminal pro ceedings before a court of summary jurisdiction duly gives notice of ap peal, then in any such case the Supreme Court, if it thinks fit, may order the appeals to be consolidated and to be heard at the same time.

(2) Where an appeal relating to a compensation order involves persons other than the informant and defendant in criminal proceedings before a court of summary jurisdiction, then in any such case the Supreme Court may, if it thinks fit, order those persons (if not already appellants) to be made additional parties to the appeal, and may give such directions in the matter as it thinks fit.

(3) The powers of the Supreme Court under this section may be exercised by a judge.

Supplemental powers of Supreme Court

15 (1) The Supreme Court of its own motion, or upon the applica tion of the appellant or the respondent in an appeal, or upon the appli cation of any person who under section 14 is made an additional party to an appeal, may, if it appears to the Court to be necessary or expedient in the interests of justice, exercise in connection with the hearing of the ap peal any or all of the following powers, that is to say,—

(a) the Court may order the magistrate comprising the court of summary jurisdiction or, (in the case of a Family Court), presiding over the court of summary jurisdiction, to submit to the Court a supplementary report giving his opinion upon any point arising in the proceedings;

(b) where the appeal is on a ground involving a question of law alone, the Court may order the court of summary ju risdiction to state a case for the opinion of the Court;

(c) may appoint any person with special expert knowledge of any matter to act as an assessor to the Court where it appears to the Court that such special knowledge is re quired for the proper determination of the appeal;

and the Supreme Court may in addition exercise, in relation to any pro-ceedings taken before the Court in its appellate jurisdiction under this Act, any ancillary or supplemental powers which the Court finds it nec essary or expedient to exercise in connection with any such proceedings, being powers which for the time being are exercisable by the Supreme Court in its original criminal jurisdiction.

(2) Any power conferred upon the Supreme Court by virtue of subsection (1) may be exercised by a judge.

(3) Where in compliance with an order under paragraph (a) or under paragraph (b) of subsection (1) a supplementary report or a case stated is submitted to the Supreme Court, the Registrar shall cause copies of the report or case stated (as the case may be) to be transmitted forthwith to the appellant and to the respondent and to any person made an additional party to the appeal:

Provided that where either the appellant or the respondent ap peared in the criminal proceedings before the court of summary jurisdic tion in any of the circumstances mentioned in paragraphs (i), (ii) and (iii) of the proviso to paragraph (b) of section 13(2), then in any such case the Registrar shall cause copies of the report or case stated to be transmitted to the Attorney-General instead of to the appellant or (as the case may be) the respondent.

[section 15 amended by 1998 : 38 effective by notice in Official Gazette]

Hearing of appeals

16 (1) Subject to this section, the hearing of an appeal by the Supreme Court shall be by way of argument—

(a) upon the record of the proceedings taken before the court of summary jurisdiction contained in the docu ments transmitted to the Registrar in accordance with section 13(2)(a); or

(b) where a case is stated by the court of summary jurisdic tion in accordance with the terms of an order made un der section 15(1)(b), then upon the case so stated.

(2) If in connection with the hearing of any appeal, upon the application of the appellant, or (subject as hereinafter in this subsection provided) of the respondent or any person made an additional party to the appeal, it is made to appear to the Supreme Court that in the interest of justice it is reasonable to do so, the Court shall supplement the proce dure mentioned in subsection (1) by any or all of the following means, that is to say,—

(a) by ordering or allowing any person who was or would have been a compellable witness in the proceedings be fore the court of summary jurisdiction to give evidence at the hearing of the appeal, whether or not that person gave evidence before the court of summary jurisdiction;

(b) by allowing any person (including, where an appeal is brought under section 3 or section 4, the appellant) who was or would have been a competent but not a com pellable witness in the proceedings before the court of summary jurisdiction to give evidence at the hearing of the appeal, whether or not that person gave evidence before the court of summary jurisdiction;

(c) upon the application of the appellant, the appellant be ing a convicted person appealing under section 3, by al lowing the husband or wife of the appellant to give evi dence (where the evidence of the husband or wife could not, by reason of the Evidence Act 1905 [title 8 item 10], have been given before the court of summary jurisdiction except upon such an application) at the hearing of the appeal, whether or not the husband or wife of the ap pellant gave evidence before the court of summary juris diction;

(d) by ordering or allowing the introduction in evidence at the hearing of the appeal of affidavits relating to facts

which were not in evidence before the court of summary jurisdiction;

(e) by ordering or allowing the production and the examina tion at the hearing of the appeal of any document, ex hibit, article or thing, whether or not it was in evidence in the proceedings before the court of summary jurisdic tion;

(f) where any question arising out of the appeal involves the prolonged examination of documents or accounts or in volves any scientific examination or the examination of any locality which cannot conveniently be conducted before the Court, by ordering the reference of that ques tion to a special commissioner appointed by the Court for enquiry and report, and by examining the report of any commissioner so appointed, whether or not the re port relates to facts which were not in evidence before the court of summary jurisdiction.

(3) The Supreme Court may of its own motion supplement the procedure mentioned in subsection (1) by any or all of the means re ferred to in subsection (2)(a), (d), (e) and (f).

Hearing of appeals; supplemental

17 (1) Where an appeal is heard by the Supreme Court the Attor ney-General, in any of the circumstances set out in the proviso to section 13(2)(b), may appear in person, or may instruct counsel to appear, on behalf of the respondent, or, as the case may be, the appellant.

(2) Where an appeal is heard by the Supreme Court it shall not of itself be a ground for the allowance of the appeal that the respondent in the appeal does not appear or is not represented.

(3) The Supreme Court shall, in connection with the hearing of an appeal, have power—

(a) where any objection is taken in respect of any omission or mistake in the drawing up of any document recording or relating to a conviction, sentence, order or other deci sion of a court of summary jurisdiction; and

(b) where it appears to the Court that there were sufficient grounds before the court of summary jurisdiction to have justified the drawing up of the document free from the omission or mistake,

to amend any such document, and to adjudicate thereon as if no such omission or mistake had occurred; and, upon any such amendment as aforesaid, the Court may make such order as to costs as appears to it just and equitable.

(4) Where under this Act any recognizance has been entered into or other security given, and it appears to the Supreme Court that the recognizance was insufficiently entered into, or the other security was otherwise defective or invalid, then in any such case the Court, if it thinks fit, may allow a new and sufficient recognizance to be entered into or other security to be given before the Court in the place of the insuffi cient, defective or invalid recognizance or security ; and any such sub stituted recognizance or security shall be as valid and effectual as if it had been duly entered into or given at any earlier time; and the Supreme Court, in exercising any power in pursuance of this subsection, may make such examination, and allow such time and make such order as to the payment of costs, as appears to the Court to be just and equitable.

Appeals under section 3 against conviction or sentence

18 (1) Subject as hereinafter provided, the Supreme Court in de termining an appeal under section 3 by an appellant against his convic tion, shall allow the appeal if it appears to the Court—

(a) that the conviction should be set aside on the ground that, upon a weighing up of all the evidence, it ought not to be supported; or

(b) that the conviction should be set aside on the ground of a wrong decision in law; or

and in any other case shall dismiss the appeal:

Provided that the Supreme Court, notwithstanding that it is of opinion that any point raised in the appeal might be de cided in favour of the appellant, may dismiss the appeal if it appears to the Court that no substantial miscarriage of justice in fact occurred in connection with the crimi nal proceedings before the court of summary jurisdic tion.

(2) Subject as hereinafter provided, the Supreme Court, if it allows an appeal against a conviction, shall quash the conviction and di-rect a judgment of dismissal of the information to be entered:

Provided that where an appellant has been convicted of an
offence by a court of summary jurisdiction and that court could, in respect of the information before it, have convicted him of some other offence, and on the finding of the court of summary jurisdiction it appears to the Supreme Court that the court of summary jurisdiction must have been satisfied of facts which would have justified his conviction of that other offence, then in any such case the Supreme Court, instead of allowing or dismissing the appeal, may substitute for the conviction by the court of summary juris diction a conviction of that other offence, and may impose such sentence in substitution for the sentence imposed by the court of summary juris diction as may be allowed in law for that other offence so, however, that unless the appellant has appealed against the sentence imposed on him by the court of summary jurisdiction, any sentence imposed by the Supreme Court under this subsection shall not be a sentence of greater severity than the original sentence.

(3) Subject as hereinafter provided, the Supreme Court, in de termining an appeal under section 3 by an appellant against his sen tence, if it appears to the Court that a different sentence should have been imposed, or that the appellant should have been dealt with in some other way,—

(a) may quash the sentence imposed by the court of sum mary jurisdiction and may impose such other sentence allowed by law (whether more or less severe) in substi tution for the original sentence as the Court thinks just; or

(b) may quash the sentence imposed by the court of sum mary jurisdiction and may deal with the appellant in such way as may be allowed by law in respect of the conviction of the offence in question;

and in any other case shall dismiss the appeal:

Provided that no sentence imposed by a court of summary juris diction shall be increased upon appeal by reason of or in consideration of any evidence which was not given during the criminal proceedings before the court of summary jurisdiction.

(4) Where it appears to the Supreme Court that an appellant who is appealing under section 3 against his conviction though not prop erly convicted of some offence or part of an offence, has been properly convicted of some other offence or part of an offence, then in any such case the Supreme Court may either affirm the sentence imposed by the court of summary jurisdiction in respect of the conviction, or impose such sentence (whether more or less severe) in substitution for the origi nal sentence, or may otherwise deal with the appellant, in such way as may be allowed in law with respect to the conviction of that other offence, and which appears to the Court to be just:

Provided that unless the appellant has appealed against the sentence imposed on him by the court of summary jurisdiction, the sen tence imposed by the Supreme Court under this subsection shall not be a sentence of greater severity than the original sentence.

(5) Notwithstanding anything in subsections (1) to (4), where it appears to the Supreme Court that by reason of any imperfection or ir regularity—

(a) in the constitution of the court of summary jurisdiction; or

(b) in any criminal proceedings before the court of summary jurisdiction; or

an appellant who is appealing under section 3 against his conviction of an offence could not lawfully have been convicted by that court of sum mary jurisdiction of that offence, then in any such case the Supreme Court, instead of allowing or dismissing the appeal, may order a new trial of the appellant before a court of summary jurisdiction.

(6) Notwithstanding anything in subsections (1) to (5), where it appears to the Supreme Court that an appellant who is appealing under section 3 against his conviction of an offence did the act or made the omission constituting that offence, but was suffering from mental disor der at the time the act was done or the omission was made so as not to be criminally responsible for the act or omission, then in any such case the Supreme Court shall quash the conviction and shall order the ap pellant to be kept in custody; and the appellant shall thenceforth be treated as though he were a person in respect of whom section 546 of the Criminal Code [title 8 item 31] had effect.

Appeals under section 4 on point of law

19 (1) The Supreme Court, in determining an appeal under section 4 by an appellant (being an informant) against any decision in law which led a court of summary jurisdiction to dismiss an information, shall al low the appeal if it appears to the Supreme Court that the dismissal of the information should be set aside on the ground of a wrong decision in law; and in any other case shall dismiss the appeal.

(2) The Supreme Court, on allowing an appeal as aforesaid, may set aside the dismissal of the information and may remit the matter to a court of summary jurisdiction with a direction to that court to con vict the respondent or otherwise to proceed in accordance with law; and the court of summary jurisdiction shall govern itself accordingly.

(3) The Supreme Court, in determining an appeal under section 4 by an appellant (being an informant) against any decision in law which led a court of summary jurisdiction after convicting an offender to im pose a particular sentence or to deal with him in a particular way, shall allow the appeal if it appears to the Supreme Court that the sentence or order whereby he was sentenced or otherwise dealt with should be set aside on the ground of a wrong decision in law and in any other case shall dismiss the appeal.

(4) The Supreme Court, on allowing an appeal under subsec tion (3), shall set aside the sentence or order as aforesaid, and may remit the matter to a court of summary jurisdiction for the respondent to be sentenced or dealt with according to law; and the court of summary ju risdiction shall govern itself accordingly.

Appeal under section 4A against sentence

19A On an appeal under section 4A against sentence, the Supreme Court shall, if it thinks that the sentence imposed is manifestly inade quate or excessive, quash the sentence imposed by the court of summary jurisdiction, and impose such other sentence as may be warranted in law in substitution therefor, and in any other case shall dismiss the appeal.

Appeals under section 5 or 6 on compensation or costs

20 (1) The Supreme Court, in determining an appeal under section 5 in connection with the making or refusal to make, a compensation or der, or under section 6 in connection with the making or refusal to make an order for the payment of costs, shall allow the appeal if it appears to the Supreme Court—

(a) that an order should not have been made; or

(b) that a different order should have been made; or

and in any other case shall dismiss the appeal.

(2) The Supreme Court, in allowing an appeal as aforesaid, may make such order in the matter as appears to the Court to be just and equitable, and in making any such order may exercise any power which the court of summary jurisdiction might have exercised if it had just convicted the appellant or, as the case may be, the respondent, in the appeal.

Cost of appeal

21 (1) Upon the determination of an appeal under this Act, the Supreme Court, if it appears in the circumstances equitable to the Court to do so, may make an order requiring the appellant or the respondent to pay all or any part of the costs of appeal.

(2) For the purposes of this section—

(a) "costs of appeal" includes any costs—

(i) in respect of the preparation of copies of any documents required to be transmitted to the Registrar or to any other person in connection with the appeal;

(ii) in respect of the stating of a case in connection with the appeal;

(iii) in respect of the preparation of any affidavits made in connection with the appeal;

(iv) in respect of the appearance and examination of any witness upon the hearing of the appeal; and

(v) in respect of the enquiry and report of a special commissioner appointed under section 16(2)(f) ; and

(b) any order made by the Supreme Court as to the payment of the costs of appeal may direct all or any part of the costs of appeal, being costs otherwise falling to be met out of public funds, to be paid into the Consolidated Fund.

Restitution orders

22 (1) The Supreme Court, upon the determination of an appeal, may if it thinks fit by order annul or vary any restitution order made upon the conviction of the appellant by a court of summary jurisdiction, whether or not the conviction is itself quashed on appeal; and the resti-tution order, if annulled, shall not take effect, and if varied, shall take effect as so varied.

(2) Nothing in subsection (1) shall confer any right of appeal upon any person in connection with the making, or with the refusal to make, a restitution order.

Duties of Registrar and Senior Magistrate on determination of ap peal

23 (1) Upon an appeal being heard and determined by the Supreme Court the Registrar—

(a) shall endorse a memorandum of the decision of the Supreme Court regarding such determination on each document transmitted to him in pursuance of this Act (being a document recording the conviction, sentence, order or other decision in respect of which the appeal was heard and determined) ; and

(b) shall transmit to the Senior Magistrate a like memoran dum; and

(c) where the appellant was not present at the determina tion of the appeal, shall (without prejudice to anything in section 12) cause the appellant to be informed of the determination of the appeal and of any order made by the Supreme Court in connection with the determination of the appeal.

(2) The Senior Magistrate shall cause the terms of the memo randum transmitted to him as aforesaid to be entered in the appropriate record book kept under section 22 of the Summary Jurisdiction Act 1930 [title 8 item 34].

(3) Whenever any copy or certificate of a conviction, sentence, order or other decision referred to in subsection (1) is made, a copy of the memorandum referred to in that subsection shall be endorsed upon the copy or certificate and shall be sufficient evidence of the decision of the Supreme Court with respect to the determination of an appeal in con nection therewith where the copy or certificate would be sufficient evi dence of the conviction, sentence, order or other decision as aforesaid.

Abandonment of appeal

24 (1) Where an appellant has duly given notice of appeal or has made an application for a direction under section 8 in respect of an ex tension of time within which to give notice of appeal, he may by written notice to the Registrar abandon the appeal.

(2) Where an appeal is abandoned as aforesaid the Registrar shall give notice of the abandonment—

(a) to the respondent in the appeal; and

(b) to the Senior Magistrate,

and shall transmit to the Senior Magistrate such documents or other ar ticles mentioned in section 13(2)(a), as are in the circumstances appro priate.

(3) Upon the Senior Magistrate receiving a notice in pursuance of subsection (2), a court of summary jurisdiction may—

(a) where the appellant, having been convicted and sen tenced, gave notice of appeal against either his convic tion or against his sentence, enforce the conviction, or any sentence or order passed or made in respect of the conviction and, where any sum was retained in the cus tody of the court in pursuance of section 11(2)(iii), pay that sum into the Consolidated Fund:

Provided that no steps shall be taken to enforce a sen tence of a fine in the circumstances set out in section 12(3) until the appellant bound by a recognizance under that subsection has failed to fulfil the condition of that recognizance.

(b) where the appellant, having been convicted but not sentenced, gave notice of appeal against his conviction, enforce the conviction and impose and enforce any sen tence and make and enforce any order as if the sentence or order were imposed or made in respect of a conviction arising out of criminal proceedings just heard before and determined by the court of summary jurisdiction;

(c) in any case summon the appellant before the court, and make such order as to the payment of costs of appeal in curred up until the time of abandonment of the appeal as the court thinks just and equitable.

(4) For the purposes of this section—

(a) any powers of a court of summary jurisdiction under this section to order the payment of any costs of appeal shall be construed as including any powers conferred
upon the Supreme Court to order payment of such costs by section 21(2)(b);

(b) the Summary Jurisdiction Act 1930 [title 8 item 34], shall have effect as near as may be with respect to the summoning of any person before a court of summary ju risdiction under this section; and the enforcement of an order made under this section for the payment of costs of appeal shall be treated, for the purposes of that Act, as though such order were an order for the payment of costs to which section 31 of that Act applied.

Enforcement of sentences or orders

25 (1) Where, as a result of the determination of an appeal—

(a) any conviction, sentence or order of a court of summary jurisdiction is affirmed by the Supreme Court;

(b) any other conviction, sentence or order is substituted by the Supreme Court for the original conviction, sentence or order; or

(c) a conviction, sentence or order which might have been made or imposed by the court of summary jurisdiction is made or imposed by the Supreme Court;

then in any such case a court of summary jurisdiction shall, subject as hereinafter provided, have the like powers with re spect to the enforcement of the conviction, sentence or order as though it were a conviction, sentence or order made or imposed in respect of criminal proceedings just heard before and determined by the court of summary jurisdiction:

(2) Notwithstanding anything in subsection (1), where sums representing part or all of the payment of a fine are in pursuance of sec tion 11(2)(iii), at the time of the determination of an appeal against the imposition of the fine, or against the conviction in respect of which the fine was imposed, in the custody of a court of summary jurisdiction, then in any such case—

(a) where the appeal, being an appeal against conviction, is allowed, then the sums as aforesaid, shall, subject as hereinafter provided, be repaid to the appellant;

(b) where the appeal, being an appeal against sentence, is dismissed, then the sums as aforesaid shall be paid into the Consolidated Fund;

(c) where the appeal, being an appeal against sentence, is allowed, then the sums as aforesaid shall, to the amount required to satisfy the sentence (if any) as substituted by the Supreme Court, be paid into the Consolidated Fund; and the remainder of such sums shall, subject as here inafter provided, be repaid to the appellant:

Provided that where an appellant who is entitled to be repaid any sums as aforesaid is required to pay any or all of the costs of the appeal the amount of such costs shall not be repaid to him, but shall to the extent of the sums otherwise falling to be repaid to him be paid into the Consolidated Fund in part or in full settlement of his liability to pay such costs.

(3) Where upon the determination of an appeal an order for the payment of the costs of appeal is made under section 21 by the Supreme Court, any such order may, without prejudice to subsection (2), be en forced—

(a) by the Supreme Court as though any such order were an order for payment of costs of prosecution ordered to be paid under the Criminal Code [title 8 item 31], and section 556 of the Criminal Code shall have effect accordingly with respect to the enforcement of any such order; or

(b) if the Supreme Court so directs, by a court of summary jurisdiction as though any such order were an order for the payment of costs made by the court of summary ju risdiction in respect of criminal proceedings before that court; and the Summary Jurisdiction Act 1930 [title 8 item 34], shall have effect accordingly with respect to the enforcement of any such order.

Exhibits; delay before restitution order takes effect

26 (1) Where in any criminal proceedings before a court of sum mary jurisdiction any documents or other articles have been entered as

Bermuda Consolidated Legislation

Criminal Appeal Act 1952