Section 437
Restitution
(1)
The operation of an order for the restitution of property to a person made on a conviction by the High Court shall (unless the trial Court directs to the contrary in any case in which, in its opinion, the title to the property is not in dispute) be suspended -
(a)
in any case, until the expiration of 28 days from the date of conviction; and
(b)
where notice of appeal is given within 28 days from the date of conviction, until the determination of the appeal.
(2)
In cases where the operation of such an order is suspended until the determination of the appeal, the order shall not take effect as to the property in question if the conviction is quashed on appeal.
(3)
Provision may be made by rules and orders made under section 441 for securing the safe custody of any property pending the suspension of the operation of any such order.
(4)
The Court of Appeal may by order annul or vary any order made by the trial Court for the restitution of property to any person, although
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Costs 438.
(I)
This section applies to any appeal -
(a)
under section 4 14 against conviction;
(b)
under section 412 against a verdict of not guilty by reason of insanity;
(c)
under section 426 against a finding that the appellant is under disability.
(2)
Where an appeal to which this section applies is allowed, the
Court of Appeal may, subject to subsection (3), order the payment out of the public revenue of the costs of the appellant.
(3)
No order shall be made under this section where -
(a)
in the case of an appeal referred to in subsection (l)(a), the appellant is ordered under section 420 to be retried;
(b)
in the case of an appeal referred to in subsection (l)(b), the provisions of section 425(4)(a) apply; or
(c)
in the case of an appeal referred to in subsection (l)(c)
the provisions of section 428(4) apply.
(4)
The costs payable under this section shall be such sums as appear to the Court of Appeal reasonably sufficient to compensate the appellant for any expenses properly incurred by him in the appeal, including any proceedings preliminary or incidental thereto or in the trial Court or before a Magistrate.
(5)
The amount of costs ordered to be paid under this section shall, except where the amount is fixed by the Court of Appeal, be ascertained by the Registrar.
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Chapter XLNA
Appeals by Public Prosecutor
Appeal by Public Prosecutor against acquittal 438A. Notwithstanding any other provisions of this Code or of any other written law, the Public Prosecutor may appeal to the Court of Appeal against any acquittal of any person by the High Court in the exercise of its original criminal jurisdiction.-
Arrest of respondent 438B.
When there is an appeal by the Public Prosecutor under section 438A, the Court of Appeal may issue a warrant directing that the accused be arrested and brought before it, and may commit him to prison pending the determination of the appeal or admit him to bail.
Respondent not present 438C. Where, at the hearing of the appeal, the respondent is not present and the Court of Appeal is not satisfied that the notice of appeal was duly served upon him, the Court of Appeal shall not make any order in the matter of the appeal adverse to or to the prejudice of the respondent, but shall adjourn the hearing of the appeal to a future day for his appearance, and shall issue the requisite notice to him to service.
Grounds for allowing appeal 438D. (1) Except as provided by this Code, the Court of Appeal shall allow an appeal by the Public Prosecutor under section 438A if it thinks that -
(a)
the acquittal should be set aside on the ground that it is unsafe or unsatisfactory;
(b)
the acquittal should be set aside on the ground of a wrong decision on any question of law; or
(c)
there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal.
(2)
Notwithstanding subsection (I), the Court of Appeal may dismiss the appeal if it considers that, notwithstanding that the point raised in
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(3)
The Court of Appeal shall, if it allows the appeal, quash the acquittal.
(4)
An order of the Court of Appeal quashing an acquittal shall, except when under section 438H the respondent is ordered to be retried, operate as a direction to the trial Court to enter, instead of the record of acquittal, a judgment and verdict of conviction.
Where appeal allowed 438E.
(1)
This section applies where on an appeal by the Public
Prosecutor against an acquittal after trial on two or more charges, the Court of Appeal allows the appeal in respect of one or some of the charges only.
(2)
The Court of Appeal may in respect of any charge on which the respondent remains convicted pass such sentence, in substitution for any sentence passed thereon at the trial, as it thinks proper and which is authorised by law for the offence of which he remains convicted on that charge (whether the sentence so substituted is more or less severe).
Special finding 438F.
(1)
This section applies on an appeal by the Public Prosecutor against an acquittal of a person in whose case the Judge has made a special finding.
(2)
If the Court of Appeal considers that a wrong conclusion had been arrived at by the Judge, it may, instead of allowing the appeal, order such conclusion to be recorded as appears to it to be in law required and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law.
Finding of insanity or unfitness to plead 438G
(1)
Where, on an appeal against an acquittal by the Public
Prosecutor, the Court of Appeal is of the opinion that -
(a)
the proper verdict would have been one of not guilty by reason of insanity; or
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(b)
the case is not one where there should have been a verdict of acquittal but that there should have been a finding that the respondent was under disability, the Court of Appeal shall make an order that the respondent be admitted to a prison or hospital as the Court of Appeal may direct.
(2)
On making an order under this section, the Court of Appeal a may give such directions as it thinks fit for the detention of the respondent pending his admission to a prison or hospital.
Retrial 438H. (1) Where the Court of Appeal allows an appeal by the Public
Prosecutor against an acquittal and it appears to the Court of Appeal that the interests of justice so require, it may order the respondent to be retried.
(2)
The respondent shall not under this section be ordered to be retried for any offence other than -
(a)
the offence in respect of which he was acquitted and in respect of which the appeal is allowed as mentioned in subsection (1);
(b)
an offence of which he could have been convicted at the original trial on a charge for the first-mentioned offence;
(c)
an offence charged in an alternative count in respect of which the Judge did not give a verdict; and
(d)
any other offence which may have been disclosed by evidence adduced at the original trial.
Supplementary provisions as to retrial 4381.
(1)
A person who is to be retried for an offence in pursuance of an order under section 438H shall be tried on a fiesh charge preferred by the
Public Prosecutor.
(2)
The Court of Appeal may, on ordering a retrial, make such orders as appear to it to be necessary or expedient for -
(a)
the detention in custody or admission to bail of the person ordered to be retried, pending his retrial; or
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(5)
the retention pending the retrial of any property or money howsoever paid by virtue of the original acquittal or of any order made on that acquittal.
(3)
If the person ordered to be retried was, immediately before the determination of the appeal by the Public Prosecutor, liable to be detained in pursuance of a finding made under Chapter XXXI -
(a)
that finding shall continue in force pending the retrial as if the appeal of the Public Prosecutor had not been allowed; and
(8)
any order made by the Court of Appeal under this section for his detention in custody or admission to bail shall have effect subject to that finding.
Appeal by Public Prosecutor against sentence 4385.
Notwithstanding any other provision of this Code or of any other written law, the Public Prosecutor may appeal to the Court of Appeal against any sentence passed on any person by the High Court (not being a sentence fixed by law) in the exercise of its original criminal jurisdiction.
Supplementary provisions as to appeal against sentence 438K. (1) Where the High Court has passed on an accused two or more sentences in the same proceeding, an appeal by the Public Prosecutor against any one of those sentences shall be treated as an appeal in respect of both or all of them.
(2)
On an appeal against sentence by the Public Prosecutor, the
Court of Appeal, if it considers that the respondent should be sentenced differently for an offence for which he was dealt with, may -
(a)
quash any sentence or order which is the subject of the appeal; and
(5)
in place of it pass such sentence or make such order as it thinks appropriate for the case (whether such sentence or order is more or less severe) and as the lower Court had power to pass or make when dealing with him for the offence.
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a
Right of appeal by Public Prosecutor if person found incapable of making defence 438L.
Where there has been a finding by a Judge of the High Court under Chapter XXXI of the question of a person's fitness to make his defence, the Public Prosecutor may appeal to the Court of Appeal against that finding.
Disposal of appeal under section 438K a 438M. (1) The Court of Appeal shall allow an appeal by the Public
Prosecutor under section 438L if it thinks 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
(c)
these was a material irregularity in the course of the finding 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 considers that, notwithstanding that the point raised in the appeal might be decided in favour of the Public Prosecutor, no miscarriage of justice has actually occurred.
(3)
An appeal by the Public Prosecutor under section 438L may, where the question of fitness to be tried was determined later than on the respondent being charged, be allowed by the Court of Appeal a
(notwithstanding that the finding was properly come to) if the Court of
Appeal is of the opinion that the case is one in which the respondent should have not 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 that a new trial be ordered.
(4)
Subject to subsection (3), where appeal under section 438L is a allowed, the respondent may be tried for the offence with which he was charged, and the Court of Appeal may make such order as appear to it to be
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Appeal of Public Prosecutor not to be allowed on certain grounds 438N.
Except where, in the opinion of the Court of Appeal, a miscarriage of justice has actually occurred, no appeal by the Public Prosecutor shall be allowed under this Chapter 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 by Public Prosecutor