Key Benefits:
PART XIII
Procedure after Commencement of Trial (ss 176-197)
A. IN THE HIGH COURT AND MAGISTRATES' COURT (ss 176-184)
[Ch0802s176]176. Separate trials
When two or more persons are charged in the same indictment or summons, whether with the same offence or with different offences, the court may, at any time during the trial on the application of the prosecutor or any of the accused, direct that the trial of the accused or any of them shall be held separately from the trial of the other or others of them, and for that purpose may abstain from giving a judgment as to any of such accused.
[Ch0802s177]177. Defence by counsel, etc.
Every person charged with an offence is entitled to make his defence at his trial and to have the witnesses examined or cross-examined by his counsel, or other legal representative:
Provided that upon his trial before a magistrate's court, an accused person under the age of 16 years may be assisted by his natural or legal guardian, and any accused person who in the opinion of the court requires the assistance of another person may, with the permission of the court, be so assisted.
[Ch0802s178]178. Presence of accused
(1) Every criminal trial shall take place, and the witnesses shall, except where otherwise expressly provided by this Act or any other law, give their evidence viva voce, in open court in the presence of the accused, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable. In that event the court may order him to be removed and may direct the trial to proceed in his absence.
(2) If the accused absents himself during the trial without leave, the court may direct a warrant to be issued to arrest him and bring him before the court forthwith.
(3) The court may, at any time during the trial, order that any or every person who is to be called as a witness (other than the accused himself) shall leave the court and remain absent until he is called and that he shall remain in court after his evidence has been given.
7 of 1997, s. 2. (4) The High Court may, whenever it thinks fit, and any magistrate's court, may, if it appears to that court to be in the interest of good or public morals or of the administration of justice, direct that a trial shall be held within closed doors; and the court may direct that all or any persons, not being members or officers of the court or parties to the case, their legal representatives, or persons otherwise directly concerned with the case, be excluded from the court during the trial.
7 of 1997, s. 2. (5) Without prejudice to the provisions of subsection (4), any trial in relation to any of the following offences under the Penal Code, namely rape, attempted rape, indecent assault on any woman or girl, defilement of a girl under the age of 16 years, and indecent assault on a boy under the age of 14 years, shall be held within closed doors.
7 of 1997, s. 2. (6) Where any trial is held within closed doors in accordance with the provisions of subsection (5), the court shall direct that no person shall be present at the sitting of the court except-
(a) members and officers of that court;
(b) parties to the case before the court, their legal representatives, and witnesses and other persons directly concerned in the case;
(c) such other persons as the court may specially authorise to be present.
7 of 1997, s. 2. (7) No newspaper report of the proceedings shall reveal the name, address, or any particulars calculated to lead to the identification of the victim or complainant of the offence, and no picture of the victim or complainant of the offence shall be published in any newspaper.
7 of 1997, s. 2. (8) Nothing in this section shall prohibit the printing or publishing of any matter in a bona fide series of law reports or in a newspaper or periodical of a technical character bona fide intended for circulation among members of the legal or medical professions.
[Ch0802s179]179. No information of trial of certain offences to be published
(1) If an accused is tried upon a charge referred to in section 70(5) no person shall at any time (subject to the provisions of subsection (3)) publish by radio or any document produced by printing or any other method of multiplication any information relating to the said trial or any information disclosed thereat, unless the judge or officer presiding at such trial has, after having consulted the person against or in connection with whom the offence charged is alleged to have been committed (or if he is a minor, his guardian), given his consent, conveyed in a document signed by himself or by the Registrar or clerk of the court, to such publication.
(2) Any person contravening subsection (1) shall be guilty of an offence and liable to a fine not exceeding P100 or to imprisonment for a term not exceeding three months, or to both.
(3) The prohibition contained in subsection (1) shall not apply to the publication in the form of a bona fide law report of any information relating to or disclosed at any trial as aforesaid which is necessary to report any question of law which was raised during such trial or during any proceeding resulting therefrom, and any decision or ruling given by any court on such question:
Provided that such report does not mention the name of the person tried or of the person against or in connection with whom or the place where the offence in question was alleged to have been committed or of any witnesses at the trial.
[Ch0802s180]180. Conduct of trial
(1) In any trial, before any evidence is given, the prosecutor is entitled to address the court for the purpose of explaining the charge and opening the evidence intended to be adduced for the prosecution, but without comment thereon.
(2) The prosecutor shall then examine the witnesses for the prosecution and put in and read any documentary evidence which may be admissible. He may also, in the case of a trial before the High Court and in a case remitted to a magistrate's court to be dealt with, read any evidence given by the accused as well as his statement made in the presence of the magistrate at the preparatory examination.
(3) If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the indictment or summons, or any other offence of which he might be convicted thereon, it may then return a verdict of not guilty.
(4) At the close of the evidence for the prosecution the proper officer of the court is required to ask the accused, or each of the accused if more than one, or his legal representative, if any, whether he intends to adduce evidence in his defence. If he answers in the affirmative he may by himself or his legal representative address the court for the purpose of opening the evidence intended to be adduced for his defence, but without comment thereon. He or his legal representative shall then examine his witnesses and put in and read any documentary evidence which may be admissible.
[Ch0802s181]181. Summing up by counsel, etc.
After all the evidence has been adduced, the prosecutor shall be entitled to address the court, summing up the whole case; and the accused, or each of the accused if more than one, shall be entitled by himself or his legal representative to address the court. If in his address the accused or his legal representative raises any matter of law, the prosecutor shall be entitled to reply but only on the matter of law so raised.
After the evidence is concluded and the legal representatives or the accused (as the case may be) have addressed the court or stated that they do not wish to do so, the presiding officer may give judgment or may postpone the same to a future time.
[Ch0802s183]183. Validity of judgment
(1) The judgment of a court, or other proceedings whatever of a court in a criminal case, is not invalid by reason of it happening on a Sunday.
(2) When by mistake a wrong judgment or sentence is delivered the court may before or immediately after it is recorded, amend the judgment or sentence, and it shall stand as ultimately amended.
[Ch0802s184]184. Judgment as valid as if indictment, etc., had been originally correct
Every judgment which is given after the making of any amendment under this Act shall be of the same force and effect in all respects as if the indictment or summons had originally been in the same form in which it was after such amendment was made.
B. IN CASES REMITTED TO A MAGISTRATES' COURT (ss 185-186)
[Ch0802s185]185. Remittal on confession of the accused
(1) In a case remitted to a magistrate's court on the confession of the accused, the presiding officer shall, when such person is brought before his court, inform him that the preparatory examination in the course of which he voluntarily admitted his guilt, having been transmitted to the Director of Public Prosecutions, has been remitted by that officer to the court, and the provisions of section 152 shall mutatis mutandis be observed by the court; and if the accused is convicted such presiding officer shall ask the accused whether he has anything to say why sentence should not then be passed upon him for the offence of which he has been found or confessed himself guilty.
(2) If, in answer to that question, the accused desires to have any witness formerly examined recalled, or any person not yet examined called as a witness, or if the accused states any other ground why sentence should not then be passed upon him, the court shall consider what is urged by the accused in support of his application for further evidence or his objection to be then sentenced and shall pass or postpone sentence as it deems to be most in accordance with real and substantial justice.
(3) If the court in any such case deems it proper to pass sentence at once, a note of the application or objection made by the person accused and of the reasons for the disallowance thereof shall be noted upon the record.
[Ch0802s186]186. Remittal otherwise than on confession of accused
(1) In a case remitted by the Director of Public Prosecutions but not upon the confession of the accused, the accused shall, when brought before the court, be required to plead and the case shall, except as hereinafter provided, be proceeded with in the manner prescribed by law in respect of criminal cases which have not been remitted.
(2) When the officer who presides at the trial of any such case is himself the magistrate before whom such preparatory examination was taken, it shall not be imperative upon him to recall any witness who formerly gave evidence in the presence of such magistrate and of the accused, but it shall be competent and sufficient to read as evidence the evidence or deposition of such witness in the presence of the accused; any statement or evidence given by the accused at the preparatory examination shall be read to the accused unless such reading is dispensed with as in the case of a witness, and shall form part of the record of the trial, without prejudice to the accused's rights to make a further statement or give further evidence on oath:
Provided that with the consent of the accused or his representative, the magistrate may dispense with the reading of any such evidence or deposition.
(3) If it appears to the court that the ends of justice might be served by having a witness, formerly examined in the presence of the presiding officer and of the accused, summoned again for further examination, then such witness shall be summoned and examined accordingly.
(4) Except where specially provided in Part XIV or in any law no deposition of any witness not previously examined in the presence of both the presiding judicial officer and such accused person shall be read or used at the subsequent trial, but such witness, if a necessary one, shall be again summoned and be examined in like manner as if he had not been before examined in the case.
(5) In every case where the Director of Public Prosecutions has remitted a case for trial under the powers conferred on him by section 94, the accused shall be entitled, at the time of the trial, to inspect, without fee or reward, all evidence and depositions (or copies thereof) which have been taken and the statement made by him at the preparatory examination.
C. VERDICTS POSSIBLE ON PARTICULAR INDICTMENT OR SUMMONS (ss 187-197)
[Ch0802s187]187. When offence proved is included in offence charged
(1) When a person is charged with an offence consisting of several essential elements, a combination of some only of which constitutes a complete offence (hereinafter referred to as a "minor offence"), and such combination is proved but the remaining essential elements are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.
[Ch0802s188]188. Persons charged with any offence may be convicted of attempt
When a person is charged with an offence, he may be convicted of having attempted to commit that offence although he was not charged with the attempt.
[Ch0802s189]189. Charges of certain offences respecting infant and unborn children, and abortion, etc.
(1) When a woman is charged with the murder of her child, being a child under the age of 12 months, and the court is of the opinion that she is not guilty of murder but is guilty of infanticide, she may be convicted of the offence of infanticide although she was not charged with it.
(2) When a person is charged with the murder or manslaughter of any child or with infanticide, or with an offence under section 160 or section 161 of Cap. 08:01 the Penal Code (relating to the procuring of abortion), and the court is of opinion that he is not guilty of murder, manslaughter or infanticide or of an offence under section 160 or section 161 of Cap. 08:01 the Penal Code, but that he is guilty of the offence of killing an unborn child, he may be convicted of that offence although he was not charged with it.
(3) When a person is charged with killing an unborn child and the court is of opinion that he is not guilty of that offence but that he is guilty of an offence under either section 160 or 161 of the Penal Code (relating to the procuring of abortion), he may be convicted of that offence although he was not charged with it.
(4) When a person is charged with the murder or infanticide of any child or with killing an unborn child and the court is of opinion that he is not guilty of any of the said offences, but that he is guilty of an offence under section 223 of the Penal Code (relating to concealment of birth), he may be convicted of that offence although he was not charged with it.
[Ch0802s190]190. Charge of manslaughter in connection with driving of motor vehicle
When a person is charged with manslaughter in connection with the driving of a motor vehicle by him and the court is of opinion that he is not guilty of that offence, but that he is guilty of an offence under section 48 of the Cap. 69:01 Road Traffic Act (relating to reckless or negligent driving), he may be convicted of that offence although he was not charged with it.
[Ch0802s191]191. Charge of administering oaths
Where a person is charged with an offence under subsection (1) of section 55 of the Penal Code (relating to the taking of unlawful oaths), and the court is of opinion that he is not guilty of that offence but is guilty of another offence under subsection (2) of the said section, he may be convicted of that other offence although he was not charged with it.
[Ch0802s192]192. Charge of rape
When a person is charged with rape and the court is of opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 146, 147, 150, 168 and 246 of the Penal Code (relating to indecent assault on females, defilement of girls under 16 years of age, procuring defilement by threats etc., incest by males and common assault, respectively), he may be convicted of that offence although he was not charged with it.
[Ch0802s193]193. Charge of defilement of a girl under 16 years of age
When a person is charged with the defilement of a girl under the age of 16 years and the court is of opinion that he is not guilty of that offence but that he is guilty of an offence under section 146 of the Penal Code (relating to indecent assault on females), he may be convicted of that offence although he was not charged with it.
[Ch0802s194]194. Charge of burglary, etc.
When a person is charged with any offence mentioned in sections 300 to 305 of the Penal Code (relating to burglary, house-breaking and similar offences) and the court is of opinion that he is not guilty of that offence but that he is guilty of any other offence mentioned in those sections or in sections 317 to 320 of the Penal Code, he may be convicted of that other offence although he was not charged with it.
[Ch0802s195]195. Charge of stealing
When a person is charged with stealing anything and-
(a) the facts proved amount to an offence under section 317 of the Penal Code (relating to the receiving of stolen property), he may be convicted of that offence although he was not charged with it;
(b) it is proved that he obtained the thing in any such manner as would amount, under the provisions of the Penal Code or of any other law for the time being in force, to obtaining it by false pretences, he may be convicted of the offence of obtaining it by false pretences although he was not charged with it.
[Ch0802s196]196. Charge of obtaining by false pretences
When a person is charged with obtaining anything capable of being stolen by false pretences with intent to defraud, and it is proved that he stole the thing, he may be convicted of the offence of stealing although he was not charged with it.
[Ch0802s197]197. Construction of sections 187 to 196
The provisions of sections 187 to 196, both inclusive, shall be construed as in addition to, and not in derogation of, the provisions of any other law and the other provisions of this Act and the provisions of sections 188 to 196, both inclusive, shall be construed as being without prejudice to the generality of the provisions of section 187.
