Publications: 106 | Followers: 1

APPEALS FROM THE MAGISTRATES’ COURT ANTIGUA AND …

Publish on Category: Birds 0

APPEALS FROM THE MAGISTRATES’ COURTANTIGUA AND BARBUDA
INTRODUCTIONRole of Magistrate in Magisterial Appeals
Right Of AppealMagistrate’sCode of Procedure Act of Antigua & Barbuda Cap255- Section 167-Wherea Magistrate refuses to make a conviction the complainant may appeal to the Court of Appeal against such decision.Wherea magistrate makes a conviction the party against whom the conviction is made may appeal to the Court of Appeal against the decision;Thereshall be a right of appeal from any judgment or order of a magistrate in any civil matter where the sum exceeds $300 .60 and in a matter relating to salvage or title of wreck.
Right of Appeal
Anguilla –Magistrate’s Code of Procedure Act of AnguillaM5-Sec 194Grenada-Magistrate’s Judgments (Appeals) ActCap 178-Unless the contrary isexpressly provided by any Act any party may appeal from a judgment of the Magistrate.-Thereshall be noappeal incriminal casesfromany judgmentdismissingthe complaint,saveby leave of the DPP.Dominica-Magistrate’s Court of Procedure ActChap 4:20Section141-No appeal lies:(1) Incases where the complaint has beendismissed, except bywayof case stated on a point of law;(2)where the defendant has pleaded guilty, save where theappealisagainstexcessive fine or penalty.
CONT’D
Montserrat- CriminalProcedure Act and the Magistrate’s CourtAct-Section163:Any person who is dissatisfied with any Judgment, Sentence orOrderof the Magistratemay appeal.Limitation on right to appeal Section 165Noappeal shall be allowed in a case where the accused has pleaded guilty and has been convicted by the Magistrate of such plea, except as to the extent or legality of the sentence, unless the plea is alleged to have been equivocal or not voluntary.St. Kitts & Nevis-Magistrate’s Court of Procedure Act of Saint Christopher and Nevis Cap3.17- same as Antigua
Cont’d
St. Lucia – Criminal Code Section 720 – right of appeal by either party against whom a decision is made by a magistrate.St. Vincent & Grenadines -Criminal Procedure Code CAP 172–Section 212 & 212(A)-a complainant who is dissatisfied with any judgment, sentence or orderinany criminal cause or matter to which he is aparty;TheDPPshall be deemed to be a party to any criminal cause or matter other than those in which the proceedings were instituted and carried on as a private prosecution and which the conduct of such proceedings has not been taken over by the DPP.Tortola-Magistrate’s Code of Procedure Act of Virgin Islands CAP 44–sec. 155- Similar to Antigua with further provision fora right of appeal to the Court of Appeal from any judgment or order of a Magistrate..
Appeal to be made on Motion or by Special caseEveryappeal shall be either by way of motion or by special case.Suspensionof Execution - Appeal to operate as a stay;An appeal whether by way of motion or special case, shall have the effect of suspending the execution of the decision, judgment or order appealed from until final determination of such appeal.Upon a notice of appeal being given and such recognizances being taken or money being received, the enforcement of the judgment appealed against shall be suspended until the appeal has been determined by the Court of Appeal.EFFECT: An appellant whose sentence is suspended but who is not admitted to bail shall during the period in custody during the suspension be treated in the same manner as a prisoner awaiting trial i.e. on remand.
Stay/suspension
Saint Vincent & GrenadinesSection 215- Appeal to operate as a stay;An appeal shall have the effect of suspending the execution of the decision appeal against until such appeal shall have been determined, and shall be on motion or by special case whether by way of motion or special case shall have the effect of suspending the decision, judgment or order appealed from until the final determination of such appeal.Notwithstanding the provisions of subsection (1)-Where the decision involves a sentence of imprisonment, the filing of an appeal shall not require that the convicted person be released from custody except in accordance with section 218 (bail) ;Where the decision involves the cancellation or suspension of any licenses to drive a motor vehicle, such license shall be deemed to be cancelled or suspended until the determination of the appeal unless the court shall direct otherwise upon application made by the appellant.
Time forfiling Noticeof AppealAntigua Section170:Theappellant may file an appeal within 14 days after the day on which the Magistrate has given his decision shall serve a notice on the other party and on the magistrate of his decision to appealandthe notice shall contain the reasons for appeal.Anguilla -Section197 – same as AntiguaDominica –Section 144-Atthe time of the pronouncement of the judgment give verbal notice to the Magistrate and the opposite party of his intention to appeal.WithinFourteen (14) daysafter the day on which the Magistrate has given his or her decision, serve a notice of appeal in writing in Form A in the third schedule on the magistrate and on the opposite.Where the appellant is in prison, the officer in charge of Prison Discipline shall, on being requested to do so, render all reasonable assistance in the preparation of the notice and shall cause it to be lodged and a copy served on the Magistrate and the opposite party.Grenada -Section 4:- Same as DominicasaveWhere the appellant is in prison, the commissioner of prisons shall,onbeing requested by the appellant render to the appellant all reasonable assistance in the preparation on the notice of appeal and shall cause it to be lodged and served without payment of any fees or expenses.Montserrat -Section164 (3)- within14 days after thedecision;stating his intention and grounds of appeal.;Extension of time to Appeal Section 164 (3);Anyperson aggrieved by the decision of the Magistrate may upon giving notice to the other party , apply to the Court of Appeal for leave to extend the time prescribed within which such notice of appeal may be served and the court may do so if it deems fit.Section110(1) of the Magistrate’s Court Act gives the Magistrate Court and the Court of Appeal jurisdiction to extend the time for filing the notice of appeal for such period not exceeding 30 days.St. Kitts & Nevis -Section166 -withinFourteen (14) daysafter the day on which the Magistrate has given his or herdecision;St. Vincent & The Grenadines -Section 213 Magistrate to inform accused of right of appealWhere any person is convicted by a magistrate, the magistrate shall inform him, at the time of the sentence is passed of his right of appeal and the steps which must be taken by a party wishing to appeal. Anote shall be made at the time by the magistrate that such information has been given by him to such person and such note shall be conclusive as to the provision of this section having been complied with.Upon being so informed, the convicted person may then and there give oral notice of his intention to appeal and such notice shall be recorded by the magistrate and by the prosecutor.An appellant who has not given notice under subsection (2) or has given notice but has not at the time stated the general grounds of his appeal, within21 daysafter the day upon which the decision was given serve notice in writing, signed by appellant/counsel, on the other party and on magistrate stating his intention to appeal and of the grounds to appeal.Any person aggrieved by a decision of a magistrate’s court may upon notice to the other party, apply to the court of appeal for leave to extend the time for prescribed within which the notice of appeal may be served. The Court upon hearing such application may extend such time as it deems fit, and may do so either before or after the expiration of the time prescribed.
Cont’d
St. Lucia Section 724 –TheAppellantshall give notice in open court in the presence of the other party either by himself/herself or by his/her Counsel of his intention to appeal orWithin15 days after the decision of the Court,the Appellantshall serve a Notice of Appeal in writing upon the Clerk ofCourt signed eitherbythe Appellantor his/her Counsel.IlliterateAppellants- If the appellant signsby means of his/her mark, the mark shall be verified by at least one witness, who shall sign his/her name.Tortola - Section 158 -withinsix weeks (6 weeks)after the day on which the Magistrate has given his or her decision, shall file and serve a notice of appeal on the other party and on the Magistrate of his or her intention to appeal, and the notice shall also contain the reasons forappeal
Statutory Grounds of Appeal
Antigua SectionSection197 (2)Thenotice may set forth any of the following reasons,and no other,----Thatthe court had no jurisdiction in the case ; provided that it shall not competent for the Court of Appeal to entertain such reasons for appeal, unless objection to the jurisdiction of the Court has been formally taken at some time during the progress of the case and before the pronouncing of the decision.or(b) Thatthe Court exceeded its jurisdiction in the case or(c) That the Magistrate was personally interested in the case or(d) That the Magistrate acted corruptly or maliciously in the case;(e) That the decision was obtained by fraud or
(f)Thatthe case has already been heard or tried and decidedby, orforms the subject of a hearing or trial pending before, some competent tribunal; or(g) Thatillegal evidence substantially affecting the merits of the case was rejected by the Court; or(h) Thatillegal evidence was admitted by the Court and that there is not sufficient legal evidence to sustain the decision after rejecting such illegal evidence.
(i) Thatthe decision is unreasonable or cannot be supported having regard to the evidence or(j) Thatthe decision was erroneous in point of law; or(k) Thatsome other specific illegality, not hereinbefore mentioned, and substantially affecting the merits of the case was committed in the course of the proceedings in thecase; or(l) Thatthe judgment or sentence passed was based on a wrong principle or was such that a Magistrate viewing the circumstances reasonably could not properly have so decided; or(m) Thatthe sentence imposed was unduly severe.(3) …(4) Wherethe reason for appeal is not guilty, no particulars need to be stated.
Cont’d
Anguilla – same grounds as AntiguaGrenada - Section 9-11: Noticeof reasons forappeal may be served either at the same time ofgiving/servingthe notice of appeal or at some other time and maybeembodiedin the notice of appeal when such notice is in writing or in aseparate document.Anappellant shall set forthreasonsfor appeal theparticular matterinwhichhereliesorcomplains.Dominica Section147-The appellant shallservetwentyeight (28)days amemorandum;Ajudge may on application extend the time for such service for any sufficientreason;Anappellant shall set forth in his reasons for appeal the particular matter on which he relies or which he complains.Reasonsfor appeal may be served either at the time of giving or serving of the notice of appeal or at any time within timespecifiedand may be embodied in the notice ofappeal ina separate document.St. Kitts & Nevis-Section166 – same as provisions for Antigua
Cont’d
St. Lucia Section727 –The Appellantshall servewithintwenty-one (21) days after the decision of the Court, notice in writing of the groundsof appeal;grounds may be served either at the time of giving or serving the Notice of Appeal, or within twenty-one (21) days of the decision of the Court, or embodied in the written Notice of Appeal or in a separate document to him.Wherethe Appellant is an inmate, aCorrectional Officershall cause a written notice of the Grounds for Appeal if communicated to himto be served.Section 732 – Where no specific grounds of appeal have been served, the following general grounds of appeal shall be presumed with respect to an appellant –whois aDefendant-is not guilty of theoffence;the decision is not altogether supported by theevidence;the punishment is excessivewhois aComplainant-thatthe defendant committed the offence with which heischarged;the dismissal of the complaint is not altogether supported by theevidence;ordermade againsthimis not warranted by the evidenceTortola- same as Antigua
Service of Notice of AppealSection 171Every Notice shall be in writing signed by the appellant, his or her counsel or solicitor.The Notice may be transmitted as a registered letter through the post and shall be deemed to have been served at the time it would have been delivered in the ordinary course of the post.
Role of the Magistrate in an AppealRecognizanceSection172Theappellant shallwithin three (3) daysafter the day on which he or she served notice of his or her notice of intention to appeal, enter into a recognizance before a Magistrate with or without sureties as the Magistrate may directconditioned to appear before the Court of Appeal and to try the appeal and to abide the judgment of the Court of Appeal and to pay such costs as may be awarded by the said Court.If the Magistrate thinks it expedient he or she may instead of entering into recognizances give such other security by payment of money into Court or otherwise as the Magistrate deems sufficient.
Recognisance Cont’d
Anguilla-Section199 – sameDominica-Section 145Theappellant shall enter into recognizancewithin fourteen (14) daysafter the judgment appealed against is pronounced beforetheMagistrate with or without suretiesMagistratethinks it expedient he or she may instead of entering into recognizances give such other security by deposit of money with the Magistrate or otherwiseThe Magistrate shallwithout undue delaytransmit to the Registrar of the High Court all papers relating to the appeal.When the State is the appellant it is sufficient for the officer acting on behalf of the state to give notice in writing to the Magistrate and to the other part without entering into a recognizance.Section145(2):Adefendant who, being committed to prison on a Magistrate’s conviction or Order, who has given notice of appeal and is unable to find the necessary surety or sureties or give such other security may prosecute his appeal without entering into a recognizance provide he remains in custody pending the hearing of the appeal. In such case the Magistrate shall, by warrant direct the appellant be detained in custody accordingly, and shall in the warrant intimate to the officer in charge of Prison Discipline that the notice of appeal has been given.The appellant in such a case be detained in custody and may be taken without any fresh order or warrant in the custody of a constable to the Court to attend the hearing of his appeal.The Magistrate shall, when the appellant is detained in custody, transmit to the Registrarwithout undue delaya copy of the proceedings in which judgment has been appealed against.anappellant may at any time before his appeal is heard enter into a recognizance or give such other security and thereupon he shall be liberated unless he is custody in respect of any other charge or matter.
Recognisance Cont’d.
Grenada-Section5-7 ;The appellantshall also,within 14 daysafter the judgment appealed against is pronounced enter into recognizance before the magistrate with or without sureties in the discretion of the Magistrate, conditioned for the due prosecution of the appeal; may instead givesuch other security by deposit of money with the Magistrate or otherwise as the Magistrate deems sufficient.Where the Crown is the appellant, it shall be sufficient to give notice in writing to the Magistrate and to other party without entering intorecognizance;Ifthe crown fails to prosecute the appeal to a final determination, the other party shall be entitled to recover his/her costs of appeal from the Crown on production of a taxed bill of costs signed by the Registrar.Adefendant who, on being committed to prison on a Magistrate’s conviction or order, who gives notice of appeal and is unable to find the necessary surety(ies) may prosecute his appeal without entering into recognizance ; providedheremains in custody pending the hearing of the appealIn such a case the Magistrate shall by warrant direct the appellant to be detained in custody and shall intimate to the Commissioner of Prisons that notice has been given of appeal.The appellant shall in such a case be detained in custody and may be taken without fresh any order or warrant in custody by a constable to the Court to attend the hearing of his appealThe Magistrate shall, when the appellant is detained in custody, transmit to the Registrarwithin 3 daysof the judgment a copy of the proceedings in which the judgment has been appealed against.The court shall hear and determine with all possible dispatch any appeal in which the appellant is detained in custody.Notwithstanding, an appellant may at any time before the appeal is heard, enter into a recognizance or give such security and thereupon may be released unless he/she is in custody in respect of any other charge/matter.St. Kitts & Nevis -Section 168-Theappellant shallwithin three (3) daysafter the day on which he or she served notice of his or her notice of intention to appeal, enter into a recognizance before a Magistrate with or withoutsureties or by payment of money into court or other means; such other securityinstead of entering intorecognizances
Cont’d
St Lucia -Section 733- (1) after service of noticeofappeal, and within fifteen (15) days after the decision of the Court, enter into a recognizance, with one sufficient surety, to the satisfaction of the Magistrate, for the due prosecution of the appeal and for abiding by the result of the appeal, including the payment of all costs of the appeal.(2) TheAppellantmay instead of entering into a recognizance,lodge with theClerk of Court, the amount awarded by the decision as well as the amount of the costs, together with the sum of $500 to abide the costs of the appeal or the amount of costs of the appeal only as the case may be, and in addition shall pay totheClerk of Courtall fees in respect of theappeal, if any.(3) Ifin custody, he may be released from custodyon the order of the Magistrateif he/she complies with the requirements of this section.(4) Aperson aggrieved by the decision of the Magistrate pursuant to Section 3 (para. 3) may appeal to a judge of the High Court in Chambers who may confirm, reverse or vary the decision of the Magistrate.The Magistrate may dispense with the requirements of such recognizance, deposit orfees .Personprosecuting or defending or appearing as a public officer or in the public interest shall not be bound or required to enter into any recognizance or make a deposit or pay any fees.
Cont’d
St , Vincent - Section216-Theappellant shallwithin seven (7) daysafter the day on which he served notice of his notice of intention to appeal, enter into a recognizance before a Magistrate conditioned to prosecute the appeal to judgment of the court and to pay such costs as may be awardedtheappellant may instead of entering into recognizances give such other security by deposit of money with the magistrate’s court or otherwise as the Magistrate deems sufficient.if the complainant is acting on behalf of the Crown, DPP, Commissioner of Policeor publicofficer acting in his official capacityshall not be required to be bound by any recognizance or to give any security.
Cont’d
Tortola Section160– Recognizance-Theappellant shallwithin three (3) daysafter the day on which he served notice of his notice of intention to appeal, enter into a recognizance before the Magistrate with or without sureties as the Magistrate maydirect,;may instead of entering into recognizances give such other security by payment of money into Court or otherwise as the Magistrate deems sufficient.Error or defect in recognizance;Section177Where any recognizance(s) have been entered before any Magistrate for the purpose of complying with such condition of appeal shall appear to the Court of Appeal to have been insufficiently entered into or to be otherwise defective or invalid, it shall be lawful for the court of appeal , if it thinks fit, to permit the substitution of a new and sufficient recognizance(s) to be entered into before the Court of Appeal in place of such insufficient, defective or invalid recognizance(s) as the Court of Appeal shall appear to be just and reasonable.
Cont’d
Montserrat - Section 167-apellantshallwithin (3) days after serving notice of intention to appeal enter into a recognizance before a Magistrate with or without a surety as the Magistrate may direct, conditioned to prosecute the appeal and to pay such costs as ,may beawarded;appellantmay instead of entering a recognizance’s give such other security by deposit of money with the Magistrates Court or otherwise as the Magistrate deemssufficient.;providedthat if the Complainant is acting on behalf of the Crown, theDPP, Commissionerof Police or any department of the Government or is a public officer acting in his official capacity he shall not be required to be bound by the recognizance or to give any security.Where any recognizance entered into appears to the Court of Appeal to be insufficient or defective or invalid, the Court of Appeal may permit the substitution of a new and sufficient recognizance for that entered into before the Magistrate and for that purpose may allow such time and imposesuch.Magistrate’s Court Act Sec.112 (3)
NOTEIthas been said that Magistrates sometimes request exorbitant sums for recognizance.In MCRAP 1 of 2009 (Antigua) Lester Charlesetalv The Commissioner of Police, the Court of Appeal on the issue of recognizance; PerBaptisteJA
BAIL– Antigua Section173- wherethe appellant is in custody the Magistrate before whomheappears to enter into a recognizance shall onhis doingor on giving such othersecurity release him from custody;Anguilla -Section201- same as AntiguaGrenada -Section 6 :Ifthe appellant is in custody, he/she may be released on the order of the MagistrateProvidedthat nothing shall prevent the Magistrate from granting a stay of execution at the time of judgment on such terms as he/she thinks proper.Montserrat -Section 169- Criminal Procedure Code;Wherethe appellant is in custody, a judge, or the Magistrate’s court may, if the circumstances of the case he or it thinks fit, order that he be released on bail with or without sureties, pending the determination of the appeal;providedif the appeal is abandoned or withdrawn or is dismissed, any such order for bail shall be cancelled.Whenthe appellant is released on bail or the sentence is suspended pending the appeal, any time during which he is at large after being so released or during which the sentence has been suspended shall be excluded in computing the term of any sentence to which he is subject.Provided that in the case of an appellant whose sentence is suspended but who is not released from custody the Court hearing the appeal, may order that the time s spent in custody or any part thereof, awaiting the hearing of the appeal, any be included in computing the terms of the sentence.(iii)Anappellant whose sentence is suspended but who is not admittedtobail shall during the period in custody during such suspension betreatedin the same manner as a prisoner awaiting trial.St. Vincent & The Grenadines-Section 218–whereappellant is in custody, a judge or the magistrate’s court may, if in the circumstances of the case thinks fit, order that he be released on bail, with or without sureties pending the determination of the appeal;Providedthat if the appeal is abandoned, withdrawn or dismissed, any such order for bail shall forthwith.Where the appellant is released on bail or the sentence is suspended but who is not released from custody, the court of appeal, in its discretion, may order that the time so spent in custody, or any part thereof, awaiting the hearing of the appeal, may be included in computing the terms of the sentence.An appellant whose sentence is suspended but who is not admitted to bail shall during the period in custody during the suspension be treated in the same manner as a prisoner awaiting trial.
Cont’d
St. Kitts & Nevis -Section169 (amended no 25 of 2009(26-11-2009)Where the appellant is in custody the Magistrate before whom he appears to enter into a recognizance may upon application being made by or on behalf of such person and if the Magistrate thinks fit, having regard to the following;the character of the person;the nature and seriousness of the offence for which such person was convicted;the likelihood of such person absconding or committing the same or a like offence if he is released from custody;such other exceptional circumstances which appear to the court to be relevant ;order such person be released from custody with or without a surety or sureties until after such time as the appeal is determined, abandoned or withdrawn.Notwithstanding the provisions of subsection (1) a person shall only be entitled to bail pending appeal, where the sentence which was imposed upon the person does not exceed 6 months
Bail.
Tortola-Section161 -Wherethe appellant is in custodythe Magistratebefore whom he appears to enter into a recognizance shall on his so doing or on giving such other security as aforesaid, release him from custody.
Appeals by Special Case
Appeals to the Court of Appeal may also be by way of case statedThe magistrate may in his/her discretion oron the application of either party orTheir solicitorThe DPPMay state a case on any point of law arising in the case for the opinion of the court of appeal
The appellantmakes application to a magistrate to state acase on an issue of law within the same timeline as an appeal by way of motion;Theprovisions ofrelating section recognizance& appellant to go at large (bail) apply.Ifon application being duly made to a magistrate to state a case the Magistrate declines to do so, the appellant may apply to the High Court or to any judge of that court for an order requiring the case to be stated.
Duty of Magistrate as to a Special CaseThe Magistrate upon receiving an application or notice or on his or her own motion decides to state a case for the opinion of the Court of Appeal shall draw up the special case,(a) conciselysetting forth such facts and documents (if any) as may be necessary to enable the Court of Appeal to decide the question raised in the case and(b) shallforthwith transmit the same together with a certified copy of the conviction order or judgment appealed from and all documents alluded to in the special case to the Registrar of the High Court.
Enforcement of JudgmentAfter the pronouncement of the judgment of the Court of Appeal, the Magistrate of the court from which the appeal came shall have the same jurisdiction and power to enforce any decision which has been affirmed, modified or amended by the Court of Appeal or any judgment pronounced by the Court of Appeal, in the same manner all as if the decision or judgment had been pronounced by himself or herself.Provided that in any case where an order of imprisonment of a person is affirmed on appeal, the court of appeal may, if it considers it expedient to do so, forthwith commit the person to prison in pursuance and in execution of the order.The imprisonment of the person (if it has not previously commenced ) shall be reckoned to begin from the day on which he or she is arrested to be taken to the prison wherein he or she has been ordered to be imprisoned:If the person has been released from custody, on giving security, he or she shall be imprisoned for such further period as, with the time during which he or she has been already imprisoned, is equal to the period for which he or she was ordered to be imprisoned as aforesaid.
The End
Discussions

0

Embed

Share

Upload

Make amazing presentation for free
APPEALS FROM THE MAGISTRATES’ COURT ANTIGUA AND …