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Appeals (Amendment) Act 1974

REPUBLIC OF NAURU

APPEALS (AMENDMENT) ACT 1974
(No. 15 of 1974)

SHORT TITLE AND COMMENCEMENT

1. This Act may be cited as the Appeals (Amendment) Act 1974 and shall come into force on a date to be specified by the Minister by notice in the Gazette.

INTERPRETATION

2. In this Act. unless the context otherwise requires - "the principal Act" means the Appeals Act 1972.

AMENDMENT TO SECTION 2 OF THE PRINCIPAL ACT

3. Section 2 of the principal Act is amended -

(a) by deleting the word and number "Part III" in the definition of "appeal" and inserting in lieu thereof the words and numbers "Parts III and VI";

(b) by deleting the definition of "conviction" and inserting in lieu thereof the following definition -

""conviction" includes a special finding under section 111 of the Criminal Procedure Act 1972 that an accused person was not guilty by reason of insanity."

(c) by deleting the definition of "sentence" and inserting in lieu thereof the following definition -

""sentence" includes any penalty, punishment, disqualification or order for payment of costs or compensation or for restitution imposed, ordered or made by a Court in respect of any person upon his conviction or by the Supreme Court in exercise of its powers under Part II of this Act",

(d) by adding after the definition of "sentence" the following definition -

""the High Court" means the High Court of Australia established under the Constitution of Australia."

ADDITION OF NEW PARTS V, VI AND VII TO THE PRINCIPAL ACT

10. The following new Parts V, VI and VII are hereby added to the principal Act -

"PART V - APPEALS FROM THE SUPREME COURT IN CRIMINAL CAUSES

APPEALS FROM THE SUPREME COURT IN CRIMINAL CAUSES

37. (1) A person convicted on a trial held before the Supreme Court may appeal to the High Court -

(a) against his conviction on any ground of appeal which involves a question of fact alone, a question of mixed law and fact or a question of law alone; and

(b) against the sentence passed on his conviction, unless the sentence is one fixed by law; and the High Court has jurisdiction to hear and determine the appeal.

(2) The High Court may, if it thinks fit, grant to any party to an appeal from the District Court to the Supreme Court under Part II of this Act leave to appeal to the High Court against the decision of the Supreme Court therein upon such grounds as the High Court may allow and the Full Court of the High Court has jurisdiction to hear and determine the appeal; but no appeal shall lie against the confirmation by the Supreme Court of an order of acquittal by the District Court.

(3) For the purposes of the last preceding subsection, there shall be deemed to have been an appeal from the District Court to the Supreme Court under Part II of this Act in any cause where the Supreme Court has exercised its revisional powers and the decision of the Supreme Court in the exercise of its revisional jurisdiction shall be deemed to be the decision of the Supreme Court in the appeal.

POWERS OF HIGH COURT ON HEARING OF APPEAL

38. (1) On the hearing of any appeal under this Part the High Court may affirm, reverse or modify the judgment appealed from and may give such judgment as ought to have been given in the first instance or may remit the cause, together with its judgment or order thereon, to the Court of first instance for determination, by the way of trial de novo or re-hearing, with such directions as the High Court may think necessary.

(2) The High Court may, notwithstanding that it may be of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial. miscarriage of justice has in fact occurred.

STAY OF SENTENCE AND ORDERS

39. (1) Sentence of death and any order made by the Supreme Court on conviction, or made or confirmed by the Supreme Court under the provisions of Part II of this Act, for the payment of compensation or of any of the expenses of the prosecution or for the restoration of any property to any person, and the operation of any provision of any law re-vesting in the original owner or his personal representative the property in stolen goods in case of any such conviction. shall be stayed in every case -

(a) until the expiration of twenty-one days after the date on which the Supreme Court imposed. made or confirmed it:

(b) where any period longer than twenty-one days is allowed for applying under this Part to the High Court for leave to appeal or for filing a notice of appeal under this Part to the High Court, until the expiration of that period;

(c) where an application has been made under this Part to the High Court for leave to appeal, until the application has been heard and determined by the High Court or discontinued and, if leave to appeal is granted, for a further period until the expiration of the time allowed for filing the notice of appeal; and

(d) where a notice of appeal to the High Court under this Part has been filed in a Registry of the High Court, until the appeal has been heard and determined by the High Court or discontinued;

but, if in any cause the Supreme Court is satisfied that the title to any property to which any such order relates or in respect of which such provision of the law operates is not in dispute, it may direct that the order or the operation of such provision of the law shall not be stayed insofar as it relates to such property.

(2) Where in respect of any cause an application for leave to appeal under this Pan has been made or notice of appeal under this Part has been filed. the sentence and any order made upon the conviction or by the Supreme Court on an appeal under Part II of this Act, other than an order quashing a conviction, shall be stayed, unless the Supreme Court otherwise orders, -

(a) where an application has been made for leave to appeal, until the application has been heard and determined by the High Court or discontinued and, if leave to appeal is granted, for a further period until the expiration of the time allowed for filing the notice of appeal; and

(b) where notice of appeal has been filed, until the appeal has been heard and determined by the High Court or discontinued;

but the Supreme Court shall not order the execution of a sentence of death until the appeal has been determined or discontinued.

(3) The Supreme Court may, if it thinks fit, make the stay of a sentence of imprisonment conditional upon the person subject to such sentence entering into such a bail recognizance. with or without sureties, as it considers reasonable.

(4) The High Court may set aside any order of the Supreme Court that a sentence or order is not to be stayed or is to be stayed conditionally upon the person subject to such sentence entering into a bail recognizance and, in any such case, may make the stay of a sentence of imprisonment conditional upon the person subject to such sentence entering into such a bail recognizance. with or without sureties, as the High Court considers reasonable.

(5) A person whose sentence of imprisonment has been stayed under subsection (2) or subsection (4) of this section conditionally upon his entering into a bail recognizance shall not depart Nauru without leave of the Supreme Court. Any police officer having reason to believe that any such person intends to depart Nauru without such leave may arrest him without warrant and take him forthwith before the Supreme Court or, if the Supreme Court is not in session, before the Registrar. If the Court or the Registrar upon proper inquiry finds that such person did intend to depart Nauru without the leave of the Supreme Court, the Court or the Registrar may commit such person to prison to be detained therein until his appeal. or his application for leave to appeal, is determined by the High Court or discontinued.

(6) An appellant or applicant for leave to appeal whose sentence of imprisonment has not been stayed or who, it it has been stayed conditionally upon his entering into a bail recognizance, has not entered into such a recognizance shall, if he makes application therefor, be treated as a prisoner awaiting trial; but in that event eight weeks of the time during which he is in custody and is treated as a prisoner awaiting trial in pursuance of the provisions of this subsection, or the whole of that time it it is less than eight weeks, shall be disregarded in computing the term of his sentence.

(7) Where a sentence of death is stayed under this section,' the person subject to that sentence shall be detained in prison during the period for which it is stayed.

DIRECTOR OF PUBLIC PROSECUTIONS TO BE PARTY TO CERTAIN APPEALS

40. For the purposes of this Part of this Act, the Director of Public Prosecutions shall be deemed to be a party to any criminal cause in which the proceedings were instituted and carried on by a public prosecutor.
    

LEGAL AID

41. (1) A Justice of the High Court or a judge of the Supreme Court may at any time grant legal aid to a party to an appeal, or to an application for leave to appeal. under this Part to enable such party to have a written case prepared for him by a barrister and solicitor of the Supreme Court or to be represented by counsel at the hearing of the appeal or the application by the High Court, if, in the opinion of the Justice or the judge, it appears desirable in the interests of justice that such party should receive such aid having regard to his financial means, the nature of the cause and the grounds of the appeal or the application.

(2) The expenses of legal aid granted to an appellant under this section shall be paid out of the Treasury Fund up to an amount allowed by the High Court but subject to any provision as to rates and scales of payment made by rules of court.

APPELLANT NOT ENTITLED TO ATTEND HEARING IF SENTENCED TO IMPRISONMENT

42. (1) A party to an appeal, or an applicant for leave to appeal, under this Part who has been sentenced to imprisonment in the cause to which the appeal or application relates or in any other cause. unless such imprisonment has been served, shall not be entitled to be present at the hearing of the appeal or application but shall be entitled, at his own expense or with legal aid if it is granted, to be represented at the hearing by counsel.

(2) The High Court may exercise its powers under section 38 of this Act notwithstanding that any party to an appeal or an applicant for leave to appeal has not attended or been represented by counsel at the hearing of the appeal or application.

COSTS OF APPEAL

43. On the hearing and determination of an appeal, or of an application for leave to appeal, under this Part. the High Court may order the payment of such costs as it thinks just.
    

PART VI - APPEALS FROM THE SUPREME COURT

IN OTHER CAUSES AND MATTERS

APPEALS FROM THE SUPREME COURT

44. Subject to the provisions of section 45, an appeal shall lie to the High Court -
    

(a) against any final judgment, decree or order of the Supreme Court in any cause or matter, not being a criminal proceeding or an appeal from any other Court or tribunal;

(b) with the leave of the trial judge or the High Court, against any judgment, decree or order, not being a final judgment. decree or order, of the Supreme Court in any cause or matter, not being a criminal proceeding or an appeal from any other Court or tribunal; and

(c) with the leave of the High Court, against any judgment, decree or order of the Supreme Court in the exercise of its appellate jurisdiction under Part III of this Act or under any other written law, except Part II of this Act;

and the High Court has jurisdiction to hear and determine the appeal.

NO APPEAL IN CERTAIN CASES

45. No appeal shall lie under this Part -

(a) where the appeal involves the interpretation or effect of the Constitution;

(b) in respect of the determination by the Supreme Court of a question concerning the right of a person to be, or to remain, a member of the Parliament;

(c) in respect of a judgment, decree or order given or made by consent;

(d) in respect of a judgment, decree or order given or made by the Supreme Court upon an appeal from the Nauru Lands Committee or any successor to that Committee that performs the functions performed by the Committee immediately prior to the date on which this Part of this Act came into force;

(e) from an order allowing an extension of time for appealing from a decision;

(f) from an order of a judge giving unconditional leave to defend an action;

(g) from the decision of the Supreme Court or of any judge thereof where it is provided by any written law that such decision is to be final; or

(h) from an order absolute for the dissolution or nullity of marriage in respect of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded. has not appealed from that decree.

POWERS OF HIGH COURT ON HEARING OF APPEAL

46. Upon the hearing of any appeal under this Part of this Act the High Court may affirm, reverse or modify the judgment or order appealed from and may give such judgment or make such order as ought to have been given in the first instance."
    

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