Section 427
Right of appeal if person found incapable of making defence
Where there has been a determination under Chapter XXXI of the question of a person's fitness to make his defence by a Judge of the High
Court, the person may appeal to the Court of Appeal against the finding.
Disposal of appeal under section 427 428.
(1)
The Court of Appeal shall allow an appeal under section 427
if it is of opinion that -
(a)
the finding should be set aside on the ground that it is unsafe or unsatisfactory;
(b)
the order giving effect to the finding should be set aside on the ground of a wrong decision on any question of law; or
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(c)
there was a material irregularity in the course of the determination of the question of fitness to be tried, and in any other case (except one to which subsection (3) applies) shall dismiss the appeal.
(2)
Notwithstanding subsection (I), the Court of Appeal may dismiss the appeal if it is of opinion that, notwithstanding that the point raised in the appeal might be decided in favour of the appellant, no a miscarriage of justice has actually occurred.
(3)
An appeal under section 427 may, where the question of fitness to be tried was determined later than on the accused being charged, be allowed by the Court of Appeal (notwithstanding that the finding was properly come to) if the Court of Appeal is of opinion that the case is one in which the accused person should have been acquitted before the question of fitness to be tried was considered; and, if an appeal is allowed under this subsection, the Court of Appeal shall, in addition to quashing the finding, direct a verdict of acquittal to be recorded (but not a verdict of not guilty by reason of insanity).
(4)
Subject to subsection (3), where an appeal under section 427
is allowed, the appellant may be tried for the offence with which he was charged, and the Court of Appeal may make such orders as appear to it to be necessary or expedient pending any such trial for his custody or admission to bail.
Appeal not to be allowed on certain grounds 429.
Except where, in the opinion of the Court of Appeal, a miscarriage of justice has actually occurred, no appeal shall be allowed because of -
(a)
any defect which, if pointed out during the progress of the trial, might have been amended by the trial Court; or
@)
any informality in the swearing of a witness.
Procedure for appeal 430.
(1)
A person who wishes to appeal to the Court of Appeal shall give notice of appeal in such manner as may be provided by rules and orders made under section 441.
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(2)
Notice of appeal shall be given within 28 days -
(a)
from the date of the conviction, verdict or finding appealed against;
(b)
in the case of appeal against sentence, from the date on which sentence was passed; or
(c)
in the case of an order made or treated as made on conviction, from the date of the making of the order.
(3)
If sentence was passed more than 7 days after the date of conviction, verdict or finding, notice of appeal against the conviction, verdict or finding may be given within 28 days from the date on which sentence was passed.
(4)
The time for giving notice under this section may be extended, either before or after it expires, by the Court of Appeal.
(5)
In the case of a conviction involving a sentence of death or corporal punishment -
(a)
the sentence shall not be executed until after the expiration of the time within which notice of appeal may be given;
and
(b)
if notice is so given, the appeal shall be heard and determined with as much expedition as is practicable, and the sentence shall not be executed until after the determination of the appeal.
Bail 431.
The Court of Appeal may, if it thinks fit on the application of an appellant, admit him to bail pending the determination of his appeal.
Groundless appeals 432.
(1)
If it appears to the Registrar that a notice of an appeal does not show any substantial ground of appeal, he may refer the appeal to the
Court of Appeal for summary determination.
(2)
If a case is referred to it under subsection (I), the Court of
Appeal may, if it considers that the appeal is frivolous or vexatious and can
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a be determined without any full hearing, dismiss the appeal summarily, without calling on anyone to attend the hearing or to appear for the prosecution thereon.
Preparation of case 433.
(1)
The Registrar shall -
(a)
take all necessary steps for obtaining a hearing of any appeal of which notice is given to him and which is not dismissed summarily under section 432; and
(b)
obtain and lay before the Court of Appeal in proper form all documents, exhibits and other things which appear necessary for the proper determination of the appeal.
(2)
Rules and orders made under section 441 may enable an appellant to obtain from the Registrar any documents or things, including copies or reproductions of documents, required for his appeal.
Appellant may be present 434.
(1)
Except as provided by this section, an appellant shall be entitled to be present, if he wishes it, on the hearing of his appeal, although he may be in custody.
(2)
A person in custody shall not be entitled to be present -
(a)
on any proceedings preliminary or incidental to an appeal; or
(b)
where he is in custody in consequence of a verdict of not guilty by reason of insanity or of a finding of disability, unless the Court of Appeal gives him leave to be present.
(3)
The power of the Court of Appeal to pass sentence on a person may be exercised although he is for any reason not present.
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Evidence 435.
(1)
For the purposes of this Chapter, the Court of Appeal may -
(a)
order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it to be necessary for the determination of the case;
(b)
order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal, whether or not he was called in those proceedings; and
(c)
subject to subsection (3), receive the evidence, if tendered, of any witness.
(2)
Without prejudice to subsection (I), where evidence is tendered to the Court of Appeal thereunder it shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if -
(a)
it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(b)
it is satisfied that it was not adduced in those proceedings but that there is a reasonable explanation for the failure to adduce it.
(3)
Subsection (l)(c) applies to any witness (including the appellant) who is competent but not compellable, and applies also to the appellant's husband or wife where the appellant makes an application for that purpose and the evidence of the husband or wife could not have been given in the proceedings from which the appeal lies except on such an application.
(4)
For the purposes of this Chapter, the Court of Appeal may order the examination of any witness whose attendance might be required under subsection (I)@) to be conducted, in manner provided by rules and orders made under section 441, before any Judge or other person appointed by the Court of Appeal for the purpose, and allow the admission of any depositions so taken as evidence before the Court of Appeal.
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Effect of appeal on sentence 436.
(1)
The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of
Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.
(2)
Where the Court of Appeal gives a contrary direction under subsection (I), it shall state its reasons for doing so.
(3)
Where an appellant is admitted to bail under section 43 1, the time during which he is at large after being admitted to bail shall be disregarded in computing the term of any sentence to which he is for the time being subject.
(4)
The term of any sentence passed by the Court of Appeal shall, unless the Court of Appeal otherwise directs, begin to run from the time when it would have begun to run if passed in the proceedings from which the appeal lies.