Criminal Procedure And Evidence - Appeals (Ss 322-326)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1478

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PART XXI
Appeals (ss 322-326)

[Ch0802s322]322. When execution of sentence may be suspended

The execution of the sentence of a magistrate's

court shall not be suspended by reason of any appeal against a conviction,

unless-

(a) the

sentence is that the accused be given corporal punishment, in which case the

sentence shall not be executed until the appeal has been heard and decided; or

(b) the

court from which the appeal is made thinks fit to order that the accused be

admitted to bail or, if he is sentenced to any punishment other than simple

imprisonment, that he be treated as an unconvicted prisoner until the appeal

has been heard and decided:

Provided that-

(i) when the

accused is ultimately sentenced to imprisonment, the time during which he is so

released on bail shall be excluded in computing the term for which he is so

sentenced; and

(ii) when the

accused has been detained as an unconvicted prisoner as hereinbefore provided,

the time during which he has been detained shall be included or excluded in

computing the term for which he is ultimately sentenced as the appellate court

may determine.

[Ch0802s323]323. Summary dismissal of appeal

Where an appeal against a conviction or sentence

from a magistrate's court has been duly noted, the appellate court, on perusing

the record of the case, including the appellant's statement setting out the

grounds upon which the appeal is based, and any due notice of amendment

thereof, and any further document which may have duly become part of the

record, may if it considers that there is no sufficient ground for interfering,

dismiss the appeal summarily:

Provided that no appeal shall be dismissed unless

the appellant or his counsel (if the court has been notified that he has a

counsel) has had a reasonable opportunity of being heard in support of the

same.

[Ch0802s324]324. Notice of time, place and hearing

If the appellate court does not dismiss the appeal

summarily, it shall cause notice to be given to the appellant or his counsel,

and to the Director of Public Prosecutions, or in the case of a private

prosecution, to the complainant or his counsel, of the time and place at which

such appeal will be heard, and shall furnish the Director of Public

Prosecutions or, in the case of a private prosecution, the complainant or his

counsel, with a copy of the record of the case, including the appellant's

statement setting out the grounds upon which the appeal is based, and any due

notice of amendment thereof, and any further document which may have duly

become part of the record.

[Ch0802s325]325. Powers of appellate court

In case of any appeal against a conviction or

sentence which has not been dismissed summarily under section 323, the

appellate court may without prejudice to the exercise by the court of its

powers under section 62 of the Magistrates' Courts Act and under section 10 of

the High Court Act-

(a) confirm

the judgment of the court below, in which case if the accused, having been

convicted and admitted to bail, is in court, the appellate court may forthwith

commit him to custody for the purpose of undergoing any punishment to which he

may have been sentenced;

(b) order

that the judgment shall be set aside notwithstanding the verdict, which order

shall have for all purposes the same effect as if the accused had been

acquitted;

(c) give

such judgment as ought to have been given at the trial, or impose such

punishment (whether more or less severe than or of a different nature from the

punishment imposed by the court below) as ought to have been imposed at the

trial; or

(d) make

such other order as justice may require:

Provided that notwithstanding that the

appellate court is of the opinion that any point raised might be decided in

favour of the accused, no conviction or sentence shall be set aside or altered

by reason of any irregularity or defect in the record or proceedings, unless it

appears to the appellate court that a failure of justice has in fact resulted

therefrom.

[Ch0802s326]326. Order of court to be certified

The order or direction of the appellate court

shall be certified under the hand of the presiding judge to the Registrar of

the court before which the case was tried, and such order or direction shall be

carried into effect and shall authorize every person affected by it to do

whatever is necessary to carry it into effect.