CO129-554-10 Magistrates Amendment Ordinance 1935 18-4-1935 - 17-6-1935 — Page 8

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Ordinance

No. 9 of 1899.

Ordinance

No. 38 of 1932.

36 & 37 Vict. c. 65, s. 46.

Procedure

on appeal to

a judge.

23 & 24

Geo. 5, c. 38,

a. 1.

First

Schedule Forms

Nos. 91 and 92.

(2) the judge, if he thinks additional evidence to be necessary, may receive such evidence, and for that purpose shall have the like powers under paragraphs (a), (b) and (c) of subsection (8) of section 78A of the Criminal Procedure Ordinance, 1899, that the Full Court would have had if the appeal had been an appeal to which that section applied, and the judge may issue any process necessary for enforcing the exercise of such powers;

(3) except in the case of whipping, which shall be stayed pending appeal, the appeal shall not operate as a stay of execution, but the magistrate or the judge may stay execution or sentence pending the appeal on such terms as to security for the payment of any money or the suffering cf any punishment ordered by or in such conviction or sentence as to the magistrate or judge shall seem necessary: Provided that if the appellant is in prison, no such security shall be required, and on such stay as aforesaid the appellant shall be treated, pending the determination of his appeal, in such manner as may be directed by the rules made under the Prisons Ordinance, 1932, for the case of persons awaiting trial;

(4) the judge may reserve the appeal, or any point in the appeal, for the consideration of the Full Court, or may direct the appeal, or point in the appeal, to be argued before the Full Court; and the Full Court shall have power to hear and determine any such appeal or point so reserved or so directed to be argued.

118E. Where a person is authorised by section 118A or 118B to appeal to a judge against a conviction or sentence of a magistrate, the following provisions shall apply:

(i) the appellant shall, within fourteen days after the day of his conviction by the magistrate, give to such magistrate's clerk notice in writing of his appeal, stating the general grounds of his appeal, and signed by him or his agent on his behalf, and thereupon the magistrate's clerk shall give a copy of such notice to the other party;

(ii) the appellant shall, after giving notice of appeal to the magistrate's clerk and within twenty-one days after the day of his conviction, enter into a recognizance with or without sureties as any magistrate may have directed, and in such reasonable sun as, having regard to the purpose of the recognizance and to his means, the magistrate may have thought necessary to fix, conditioned to prosecute his appeal with diligence, or, with the magistrate's consent, he may, as respects the whole or any part of the sum so fixed, give such other security, by deposit of money with the magistrate's clerk, or otherwise, as the magistrate may deem sufficient;

(i) for the purposes of this section, the date of a magistrate's decision upon any review under section 99, or of his refusal to grant an application for such review, as the case may be, shall be deemed to be the date of the conviction of the appellant;

(iv) where the appellant is in custody, any magistrate may, if he thinks fit, release him from custody on his complying with the provisions of paragraph (ii) if he has not already done so, and on his either entering into a recognizance,

with or without sureties, and in such reasonable sum as he thinks necessary to fix, conditioned to appear at the hearing of the appeal, or giving with the magistrate's consent other security for his appearance;

(v) recognizances for the purposes of paragraphs (ii) and (iv) may, if it be convenient, be combined in one recognizance;

(vi) the judge may from time to time adjourn the hearing of any appeal;

(vii) the judge may by his order confirm, reverse or vary the magistrate's decision, or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate. The judge may also make such order as to costs to be paid by either party as he thinks just;

(viii) the powers of the judge under paragraph (vii) shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrate, which the magistrate might have awarded;

(ix) the Registrar shall send to the magistrate's clerk, for entry in his record, a memorandum of the judge's decision, and shall endorse a like memorandum on the conviction, and whenever any copy or certificate of the conviction is made, a copy of the memorandum shall be added thereto and shall be sufficient evidence of the judge's decision in every cate where the copy or certificate would be sufficient evidence of the conviction.

as to entry

118F-(1) So soon as an appellant has complied with Provisions the provisions of paragraph (ii) of section 118E, with respect of appeal. to entering into a recognizance or giving other security, the 23 & 24 magistrate's clerk shall transinit to the Registrar the notice Geo, 5, of appeal, the depositions and such copies thereof as the . 38, s. 3. Registrar may require, and the recognizance, if any, and a statement as to any other security given by the appellant, and thereupon the Registrar shall enter the appeal, and shall in due course give notice, together with a copy of the depositions, to the appellant, to the other party to the appeal, and to the Crown Solicitor, as to the date, time and place fixed for the hearing of the appeal.

A notice required by this sub-section to be given to any person may be sent by post in a registered letter addressed to him at his last or usual place of abode or business.

(2) Where an appellant has for the purposes of paragraph (iv) of section 118E entered into a separate recognizance or given other security for his appearance, the clerk to the magistrate against whose decision the appeal is brought shall, before the date fixed for the hearing of the appeal, transmit to the Registrar the recognizance, if any. and a statement as to any other such security given by the appellant.

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