271
38
Appeal on question of fact.
for leave
fact by way
105. Within seven clear days after the hearing and de- Application termination by a magistrate of any complaint, information, to appeal on charge or other proceeding which he has power to determine question of in a summary way, either party thereto or any person aggriev- of re-hearing. ed thereby who desires to question any conviction, order, de- termination or other proceeding as aforesaid on the ground that it is erroneous in point of fact, or on the ground that there was no evidence on which the magistrate could properly con- vict or make the order or give the determination or take the proceeding in question, as the case may be, may apply to the magistrate for leave to appeal to the Full Court by way of a re-hearing, and if such leave is granted the magistrates' clerk shall, subject to the provisions of section 108, deliver to the First appellant a certificate to that effect, and shall forward the Form original depositions in the case to the Registrar, or, if the party No. 85. or person desiring to appeal consents thereto, the magistrate may order the case to be re-heard before him.
Schedule,
the Full
106. Within ten days after the receipt of such certificate Filing of the appellant shall file the same with the Registrar, together motion in with a motion for a re-hearing before the Full Court, setting Court. forth shortly the grounds therefor, and such motion shall be served on the respondent and on the Crown Solicitor, and the Full Court, on the hearing thereof, may allow or dismiss the appeal, with or without costs, or may grant a re-hearing subject to such terms as to costs or otherwise as it may think fit.
on re-
107. On such re-hearing, unless the Full Court otherwise Procedure orders, the case shall be heard and the evidence taken de novo, hearing. and the Full Court may, in its discretion, allow fresh evidence to be given on such re-hearing: Provided that in a case where the evidence is taken de novo, if it is proved that a wit- ness who was examined before the magistrate is dead or unable to be present on such re-hearing, the Full Court may, in its discretion, admit the deposition of such witness signed by the magistrate, saving all just exceptions.
Appeals generally.
by appellant
108.-(1) Within three weeks from the making of an Giving of application under section 100 or 105, the appellant shall enter security into a recognizance before a magistrate, with or without sure- and fees. ties and in such sum as to the magistrate may seem meet, con- First ditioned to prosecute the appeal without delay and to pay such Schedule. costs as may be awarded by the Full Court: Provided always No. 88. that, in the case of an appeal touching any fine, the amount of the recognizance shall not be less than the amount of the fine and a sum to cover costs.
Form
(2) The appellant, if in custody, may, by order of a First magistrate, be brought up for the purpose of entering into the recognizance.
(3) The appellant shall not be entitled to have the case or certificate delivered to him unless he completes the recogniz- ance within the prescribed time, and if he makes default in so doing the appeal shall be deemed to be abandoned.
Schedule.
Form
No. 89.
39
(4) The appellant shall at the same time, and before he shall be entitled to have the case or certificate delivered to him, pay to the magistrates' clerk or other proper officer, in respect of the said case, certificate and recognizance, the fees following:-
$ c.
1. For the recognizance
2.00
2. For drawing the case and copy thereof
for appellant, if not exceeding 5 folios of
72 words each
3.00
3. Or if the case exceeds 5 folios, for every
additional folio
0.30
0.50
4. For the certificate for leave to appeal ...
(5) The appellant, if then in custody, shall be liberated on the recognizance being further conditioned for his sub- mission to the judgment of the Full Court and for his appear- ance before a magistrate within ten days after the judgment of the Full Court has been given, to abide such judgment, unless the conviction, order or determination appealed against is quashed, set aside or reserved.
(6) This section shall not apply where the application is made by or under the direction of the Attorney General.
(7) If default is made in performing any part of the condition of the recognizance it shall be lawful for the Full Court upon motion by the respondent to declare the recogniz- ance estreated, and the appeal shall thereupon for the purposes of section 115 be deemed to have been decided in favour of the respondent.
109.--(1) Any notice or document required to be given, Service sent to or served on the respondent by the appellant shall be and notice. deemed to have been duly given, sent or served if the same shall have been delivered to the solicitor for the time being representing the respondent.
(2) If there be no solicitor representing the respondent and it shall be proved that it was impracticable to give or send to or serve on the respondent any notice or document required by this Ordinance, the Full Court, in court or in cham- bers, may direct that the notice or document be advertised or otherwise published and in any event may proceed as though the said notice or document had been duly given or sent to or served on the respondent.
state case
c. 43, s. 4.
110. If the magistrate is of opinion that the application Refusal to to state or amend a case or for leave to appeal on a question or to grant of fact is merely frivolous, but not otherwise, he may refuse certificate
for leave to state or amend a case or to grant a certificate for leave to
to appeal appeal, and shall, on the request of the party or person apply- 20 & 21 Vict. ing therefor, sign and deliver to him a certificate of such re- fusal, on payment of the sum of fifty cents: Provided always Schedule. that the magistrate shall not refuse to state a case or to grant a No. 86. certificate for leave to appeal where the application therefor is made to him by or under the direction of the Attorney General.
First
Form
272