BERMUDA 1930 : 28 SUMMARY JURISDICTION ACT 1930

Transcription

1 Laws of Bermuda BERMUDA 1930 : 28 SUMMARY JURISDICTION ACT 1930 ARRANGEMENT OF SECTIONS 1 Interpretation 2 Place of hearing summary prosecution 3 Powers of magistrates 4 Failure to appear after summons; warrant for apprehension 5 [Repealed] 6 [Repealed] 7 Summons to witness 8 Service of summons 9 [Repealed] 10 [Repealed] 11 Payment of witnesses 12 Adjournment of trial 13 Remand for medical examination 14 Right to elect trial by jury 15 Right to make defence 16 Magistrate to take written notes of evidence 17 Newly constituted court 18 Non-appearance of accused 19 Non-appearance of prosecutor 20 Non-appearance of both parties 21 Record of judgment 22 Record of conviction 23 Alternative convictions 24 Punishment where no special punishment prescribed 25 Committal to Supreme Court for sentence 26 Commencement of sentence 27 Consecutive sentences 28 Costs against informant 29 Prosecution costs 30 Enforcement of payment of fine and costs 31 Nolle prosequi 1

2 SUMMARY JURISDICTION ACT Period of imprisonment in default of payment of fine or costs 33 Time for payment; payment excused; instalments [preamble and words of enactment omitted] 34 Security for keeping peace 35 Forms in Schedule SCHEDULE [1 May 1930] Interpretation 1 In this Act, unless the context otherwise requires "the court" means the court of summary jurisdiction before which a summary prosecution is tried; "fine" means any fine, forfeiture or penalty imposed by this Act. Place of hearing summary prosecution 2 Every summary prosecution shall be heard before a court of summary jurisdiction. Powers of magistrates 3 With respect to proceedings in relation to a summary prosecution, a magistrate (a) may receive information in Form A in the Schedule (b) may issue a summons in Form B in the Schedule; (c) may, after sworn information or failure of the accuse person to attend on summons on due proof of service thereof, issue a warrant in Form C in the Schedule, and, after examination on oath before a court of summary jurisdiction into the merits of and adjudication on the prosecution, the court may take every proceeding necessary or advisable to enforce obedience to such adjudication, or otherwise respecting the penalty, fine, imprisonment, costs or other order, matter or thing: Provided that any Justice of the Peace may upon sworn information issue a warrant in Form C in the Schedule by way of process preliminary to the hearing and determination of a summary prosecution: Provided further that where it is intended to issue a summons instead of a warrant in the first instance it shall not be necessary for the information to be in writing or sworn to, but in such case it may be by parol only and without oath to support it. 2

3 Laws of Bermuda Failure to appear after summons; warrant for apprehension 4 When the accused person fails to appear after summons, the court (on proof of due service of the summons) may either hear and determine the case ex parte, or may issue a warrant in Form C in the Schedule for the apprehension of the accused person. Endorsement of warrant for bail 5 [Repealed by 2005:24 s.15(1) & Sch 3 effective 15 January 2006] Arrest of person released on bail 6 [Repealed by 2005:24 s.15(1) & Sch 3 effective 15 January 2006] Summons to witness 7 The magistrate composing the court, or any other magistrate, may, on the application of the complainant or of the accused person, issue a summons in Form D in the Schedule, or, where the desired witness is outside Bermuda, in such other form as may be appropriate, requiring every person named in the summons to appear as a witness on the hearing on a day and at a time and place stated in the summons, and to testify to what he knows concerning the charge. [Section 7 amended by 1994:41 effective July ] Service of summons 8 A summons shall be served by showing the summons, and delivering a copy thereof, to the person to whom the summons is directed, or by leaving a copy of the summons at his usual or last known place of abode. 9 [Repealed by 1979:17] 10 [Repealed by 1979:17] Payment of witnesses 11 (1) The court shall allow witness money to any witness attending on summons, or without summons on the request of the complainant or of the accused, at the rate of one dollar and eighty cents a day or, where the witness is a medical practitioner or other specially qualified person attending to give professional evidence, at the rate provided in any such case by the Evidence Act 1905 [title 8 item 10]. (2) Witness money shall be costs in the case, and shall, if not paid by or recovered from the party liable for costs, be paid out of the Consolidated Fund on the certificate of the magistrate composing the court. 3

4 SUMMARY JURISDICTION ACT 1930 Adjournment of trial 12 (1) A court of summary jurisdiction may at any time, whether before or after commencing the trial of an information, adjourn the trial. (2) The court may when adjourning either fix the time and place at which the trial is to be resumed, or, unless the court remands the accused person, leave the time and place to be determined later by the court; but the trial shall not be resumed at that time and place unless the court is satisfied that the parties have had adequate notice thereof. (3) A court of summary jurisdiction may, for the purpose of enabling enquiries to be made or of determining the most suitable method of dealing with the case, exercise its power to adjourn after convicting the accused person and before sentencing him or otherwise dealing with him; but, if it does so, the adjournment shall not be for more than fourteen days at a time. (4) On adjourning the trial of an information the court may require the accused person to enter into a recognizance, with or without sureties, in such sum as the court thinks expedient conditioned for his appearance at the time and place appointed for the continuance of the trial, or for his appearance after adequate notice has been given as mentioned in subsection (2), or the court may remand the accused person from time to time to prison: Provided that any such remand shall be for a period not exceeding fourteen days. Remand for medical examination 13 If on the trial of an offence punishable with imprisonment by a court of summary jurisdiction the court is satisfied that the offence has been committed by the accused person, but is of opinion that an enquiry ought to be made into that person's physical or mental condition before the method of dealing with him is determined, the court shall adjourn the case to enable a medical examination and report to be made and for that purpose may remand the accused person to prison, but any such adjournment shall not be for more than fourteen days at a time. Right to elect trial by jury 14 (1) Where a person is charged before a court of summary jurisdiction with an offence triable either way, such person may, on appearing and being charged, but before any evidence is heard, claim to be tried by a jury on indictment, and in such event the court shall proceed with the preliminary investigation of the charge accordingly. (2) For the purpose of proceedings under this section, the court shall cause the charge to be reduced into writing and read to the accused 4

5 Laws of Bermuda and shall then address to him a question to the following effect: "Do you desire to be tried by a jury or do you consent to the case being dealt with summarily?", with a statement of the meaning of the case being dealt with summarily and of the Criminal Sessions at which he will be tried, if tried by a jury; and if the accused consents to be dealt with summarily, the court shall forthwith ask him the following question, "Do you plead guilty or not guilty?" and proceed accordingly. (3) Nothing in the foregoing provisions of this section shall be construed so as to affect or derogate from section 450 of the Criminal Code [title 8 item 31]. [Section 14 subsection (1) amended by 2005:43 s.4(2) effective 30 December 2005] Right to make defence 15 Where a person is prosecuted in respect of a charge of an offence before a court of summary jurisdiction he shall be entitled to make a full answer and defence, and to have all witnesses examined and crossexamined by counsel. Magistrate to take written notes of evidence 16 It shall be the duty of the magistrate composing a court of summary jurisdiction or, in the case of a Special Court, being the chairman thereof, to take notes in narrative form of all material evidence given in connection with a case heard before such court: Provided that, upon the application of either party, or where for any reason it appears desirable to the court of summary jurisdiction to do so, any particular question and the answer thereto shall be taken down in full. Newly constituted court 17 (1) Where proceedings have commenced before a court of summary jurisdiction and the magistrate who composed the court is absent, then any other magistrate may act in the place of the absent magistrate; and, subject to this section, all proceedings may be had and taken by the newly constituted court as if the original magistrate had continued to sit. (2) Notwithstanding anything in subsection (1), where evidence has been given before a court of summary jurisdiction and the proceedings in respect of which that evidence was given are continued before a newly constituted court, the following provisions of this subsection shall have effect with regard to such evidence in relation to the proceedings before the newly constituted court 5

6 SUMMARY JURISDICTION ACT 1930 (a) subject to paragraph (b), a witness who gave evidence before the court as originally constituted shall be summoned to appear before the newly constituted court and shall again be sworn; and upon being sworn the court may require him again to give evidence, or may allow the record given before the court as originally constituted to be read over for his assent; and, where the court allows the record of evidence to be read over as aforesaid, the court may allow such further examination and cross-examination of the witness as the court thinks proper; (b) where a witness who gave evidence before the court as originally constituted has died, or is absent from Bermuda or is otherwise, in the opinion of the newly constituted court, incapable of giving evidence, then the record of the evidence of that witness given before the court as originally constituted shall for the purposes of any proceedings had and taken before the newly constituted court be deemed to be the record of evidence given before the newly constituted court. Non-appearance of accused 18 (1) Where at the time and place appointed for the trial or adjourned trial of an information the prosecutor appears but the accused does not, the court may, if the information has been substantiated on oath, and subject to subsection (2), issue a warrant for his arrest: Provided that where the accused person fails to appear at an adjourned trial, the court shall not issue a warrant under this section unless the court is satisfied that he has adequate notice of the time and place of the adjourned trial. (2) Where a summons has been issued, the court shall not issue a warrant under this section unless it is proved to the satisfaction of the court on oath that the summons was served on the accused person within what appears to the court to be a reasonable time before the trial or adjourned trial or the accused person has appeared on a previous occasion to answer to the information. Non-appearance of prosecutor 19 (1) Where at the time and place appointed for the trial or adjourned trial of an information the accused person appears or is brought before the court and the prosecutor does not appear, the court may dismiss the information or, if evidence has been received on a previous occasion, proceed in the absence of the prosecutor. 6

7 Laws of Bermuda (2) Where instead of dismissing the information or proceeding in the absence of the prosecutor the court adjourns the trial, it shall not remand the accused person in custody unless he has been brought from custody or cannot be remanded on bail. [Section 19 amended by 2005:24 s.15(1) & Sch 3 effective 15 January 2006] Non-appearance of both parties 20 Where at the time and place appointed for the trial or adjourned trial of an information neither the prosecutor nor the accused person appears, the court may dismiss the information or if evidence has been received on a previous occasion proceed in their absence. Record of judgment 21 When the case on both sides is closed the magistrate composing the court shall record his judgment in writing; and every such judgment shall contain the point or points for determination, the decision therein and the reasons for the decision, and shall be dated and signed by the magistrate at the time of pronouncing it. Record of conviction 22 When a conviction takes place the court shall cause the conviction to be recorded in a record book to be kept for that purpose: Provided that in respect of any conviction on a ticket information under Part II of the Traffic Offences Procedure Act 1974 [title 21 item 12] it shall be sufficient compliance with this section for the court to complete the record of conviction portion of the ticket and to cause the same to be filed in the court records. Alternative convictions 23 The provisions of section 342 and of sections 492 to 499 inclusive of the Criminal Code [title 8 item 31] (which sections relate to alternative convictions) shall apply to an information for an indictable offence tried summarily as if all references to an indictment were references to an information. Punishment where no special punishment prescribed 24 Where no punishment has been, or shall be, prescribed by any Act for an offence punishable on summary prosecution, the court may impose a fine not exceeding $720 (and imprisonment in default of paying such fine) or imprisonment for a term not exceeding six months, or both such fine and imprisonment. 7

8 SUMMARY JURISDICTION ACT 1930 Committal to Supreme Court for sentence 25 (1) Where a person has been convicted summarily of an offence triable on indictment, and where by reason of all the circumstances of the case and of his antecedents or by reason of the number and nature of any other offences which he may wish to be taken into consideration, the court is of opinion that greater punishment should be imposed for the offence than the court has power to impose, then the court may commit him in custody to the Supreme Court for sentence. (1A) Where a person has been convicted summarily of an offence and has been assessed as a dangerous offender, the Court shall commit him in custody to the Supreme Court for sentence in accordance with section 71E of the Criminal Code [title 8 item 31]. (2) Where under this section, a person is committed to the Supreme Court for sentence, the court of summary jurisdiction as soon as may be shall transmit to the Registrar, for delivery to the Chief Justice, the records of the proceedings before the court of summary jurisdiction together with a report by the magistrate setting out the reasons which led him to commit the person for sentence. (3) The Chief Justice on receiving the documents required by subsection (2) to be transmitted shall, by order addressed to the Commissioner of Prisons, cause the person so committed to be brought before the Supreme Court at a time to be specified in the order. (4) On the person so committed being brought before the Supreme Court, the Supreme Court shall deal with him in any manner in which he could have been dealt with if he had just been convicted of the offence before the Supreme Court on indictment. Commencement of sentence 26 A sentence of imprisonment passed by the court shall, unless the court otherwise directs, have effect from and include the day on which it was passed. Consecutive sentences 27 Without prejudice to section 25 and without prejudice to section 56(1) of the Criminal Code [title 8 item 31], where a person is convicted of two or more offences, the court may sentence him to consecutive terms of imprisonment in respect of such offences, so however that the aggregate of such terms shall not exceed twelve months. Costs against informant 28 (1) When a charge is dismissed, and appears to the court to have been unfounded, frivolous or made from any improper motive, the court may order the costs, or any part of the costs, to be paid by the informant, either forthwith or within such time as the court may allow; 8

9 Laws of Bermuda and if such costs are not paid the court may commit the informant to prison for a term not exceeding ten days, unless such costs are sooner paid. (2) The costs which the court may order to be paid under subsection (1) shall be such sums as may be fixed by the court in respect of (i) the expenses incurred by the defendant, including fees payable to his attorney (if any), which sum shall be payable to the defendant; and (ii) the witness money payable under section 11, which sum shall be payable into the Consolidated Fund. Prosecution costs 29 The court may award and order, in and by the conviction or order, the defendant to pay such sum towards the costs of the prosecution as to the court seems reasonable. Enforcement of payment of fine and costs 30 (1) Where (a) under powers conferred by law a court of summary jurisdiction has ordered a convicted person to pay a fine or costs in consequence of his conviction; and (b) the fine or costs so ordered to be paid have not been paid within the time allowed by the court, then either (aa) (bb) the court may enforce the payment by levy and distress of the goods of the convicted person; or a magistrate may issue a warrant under this section for the convicted person's arrest. (2) A warrant under this section shall be authority (a) for any police officer, whether he has the warrant with him or not, to arrest the convicted person named in the warrant and bring him before a court of summary jurisdiction to be dealt with according to law; and (b) if the circumstances warrant, for the convicted person to be detained in custody at a police station for a period of 9

10 SUMMARY JURISDICTION ACT 1930 not more than two days after his arrest before he is brought before a court in accordance with paragraph (a). (3) A warrant under this section shall be in Form F in the Schedule. (4) In relation to the issue of a warrant under this section, the provisions of section 5 shall apply mutatis mutandis as they apply in relation to the issue of a warrant under section 3. [Subsection (4) substituted by 1990:1 effective 26 February 1990] (5) A police officer arresting a person by virtue of a warrant under this section shall at the time of the arrest either (a) show the warrant to the person being arrested; or (b) if the officer does not have the warrant with him at that time, inform the person being arrested of the existence and purport of the warrant; and, where a person is arrested in accordance with paragraph (b), the warrant shall be shown to him as soon as may be after the arrest and in any event not more than four hours after the arrest. (6) A court of summary jurisdiction before which a person is brought by virtue of a warrant under this section shall enquire into the case and if satisfied that that person ("the detainee") is in default in payment of a fine or costs in consequence of a summary conviction, may either (a) order that he be forthwith imprisoned for the default for the period which the court which convicted him specified in relation to the default or, if a period of imprisonment was not so specified, then for such period warranted by law as the first-mentioned court determines; or (b) enlarge the time for payment and order the detainee's release if it appears to the court to be just in all the circumstances to do so; and the court may also in any event order the detainee to pay as costs such sum not exceeding fifty dollars in respect of the expenses occasioned by his arrest and, where he was detained after arrest, his detention as the court thinks fit. [Section 30 as amended by 1988:48 and 1990:1 was brought into operation on 3 September 1990 by BR 46/1990] 10

11 Laws of Bermuda Nolle prosequi 31 In any proceedings instituted before a court of summary jurisdiction, the Director of Public Prosecutions may at any stage of the proceedings, by writing under his hand, enter a nolle prosequi to stay proceedings on any information or summons, and upon receipt of such nolle prosequi the magistrate shall cause the accused person to be discharged from any further proceedings in respect of such information or summons; and such discharge shall operate as a bar to further proceedings on the same information or summons, unless the Director of Public Prosecutions by writing under his hand, consents to such further proceedings. [Section 31 amended by 1999:8 s.2 & Sch 1 effective 1 April 1999] Period of imprisonment in default of payment of fine or costs 32 (1) When a court of summary jurisdiction has authority under this Act to impose imprisonment in default of payment of a fine or, as the case may be, of costs, the period of imprisonment shall not exceed the period shown, respectively, in the following Table Amount of fine or costs, or fine and costs combined Not exceeding fifty dollars Exceeding fifty dollars but not exceeding one hundred dollars Exceeding one hundred dollars but not exceeding two hundred and fifty dollars Exceeding two hundred and fifty dollars but not exceeding five hundred dollars Five hundred dollars or over Period of imprisonment Seven days Fourteen days One month Three months Six months (2) Notwithstanding anything in subsection (1), an offender shall be discharged on payment of the fine or, as the case may be, of the costs, or of both, or such proportion thereof as the court, taking into consideration the period of imprisonment suffered, may permit. 11

12 SUMMARY JURISDICTION ACT 1930 Time for payment; payment excused; instalments 33 (1) Without prejudice to any other power or authority vested in the court, the court by whose conviction or order any sum is to be paid (a) may excuse such payment, or any part thereof, for any specific reason which the court deems sufficient; (b) may allow time for payment; (c) may direct payment by instalments. Security for keeping peace 34 (1) Where it is made to appear to a magistrate by information on oath that any person is likely to commit a breach of the peace or to do any wrongful act which is likely to occasion a breach of the peace, the magistrate may, as hereinafter provided, require such person to show cause why he should not be ordered to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour for such period, not exceeding twelve months, as the magistrate thinks fit. (2) The person informed against shall be summoned to appear before the magistrate at such time and place as may be specified in the summons, and if he fails to appear in accordance with the summons, the magistrate may issue a warrant for his arrest. (3) If upon enquiry, the magistrate is satisfied that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person informed against should enter into a recognizance, with or without sureties, the magistrate shall make an order accordingly. (4) Where the person informed against is unwilling to enter into a recognizance as aforesaid or is unable to find the required sureties, the magistrate may order that he be detained in custody until such time as he complies with the terms of the order or for a period of six months, whichever is the shorter period. (5) Any person in respect of whom an order has been made under this section may appeal to the Supreme Court against the making of the order and the terms thereof; and the provisions of the Criminal Appeal Act 1952 [title 8 item 87] shall apply to any such appeal as they apply to an appeal against a conviction by a court of summary jurisdiction. Forms in Schedule 35 The forms in the Schedule, or forms to the like effect, shall be deemed good, valid and sufficient in law. 12

13 Laws of Bermuda BERMUDA ISLANDS ) [blank] PARISH ) To wit SCHEDULE FORMS FORM A INFORMATION FOR A SUMMARY OFFENCE THE INFORMATION OF (name of informant) of (place of abode and description) taken this [blank] day of [blank] 19[blank] before me the undersigned, one of Her Majesty's Justices of the Peace, who saith that (name of accused person) of (place of abode and description) on the [blank] day of [blank] 19 [blank] did (state the offence). (Signature of informant) Sworn the day and year above mentioned, before me. A.B., J.P. FORM B SUMMONS TO PERSON ACCUSED OF A SUMMARY OFFENCE BERMUDA ISLANDS ) [blank] PARISH ) To wit WHEREAS you have this day been charged before the undersigned, a magistrate for that you on the [blank] day of [blank] 19[blank] at [blank] (state shortly the offence): These are therefore to command you in Her Majesty's name to be and appear before me on [blank] next the [blank] day of 19[blank] at [blank] o'clock in the [blank] noon at (Place of hearing) or before such other magistrate as may then be there to answer the said charge and to be further dealt with according to law. 13

14 SUMMARY JURISDICTION ACT 1930 Given under my hand and seal this [blank] day of [blank] 19 [blank]. A.B., Magistrate. FORM C WARRANT TO APPREHEND PERSON CHARGED WITH A SUMMARY OFFENCE BERMUDA ISLANDS ) [blank] PARISH ) To wit To the Police Officers of Bermuda: WHEREAS (name of accused person) of (abode and description) has this day been charged on oath before me the undersigned, one of Her Majesty's Justices of the Peace, that he on the (date of offence) at (place) did (state shortly the offence). (When the accused person has been summoned but has not appeared add, "And where the accused person was summoned to appear before a magistrate on [blank] the [blank] day of [blank] 19 [blank] at o'clock in the [blank] noon to answer the charge, and oath has been made that the accused person was duly served with the summons but did not appear"): These are therefore to command you in Her Majesty's name forthwith to apprehend the said (name of accused person) and to bring him before me or some other of Her Majesty's Justices of the Peace to answer to the said charge and to be further dealt with according to law. Given under my hand and seal this [blank] day of [blank] 19[blank]. A.B., J.P. BERMUDA ISLANDS ) [blank] PARISH ) To wit FORM D SUMMONS TO WITNESS To (name of witness) of (residence and occupation). 14

15 Title 8 Laws of Bermuda Item 34 (The name of two or more witnesses in the same case may be inserted in one summons.) You are hereby required to appear as a witness on the hearing of a charge against (name of defendant) on [blank] next the day of [blank] 19[blank] at [blank] o'clock in the [blank] noon at (place of hearing) before the magistrate then present to testify to what you know concerning the charge against the accused person. Given under my hand and seal this [blank] day of [blank] 19[blank]. A.B., Magistrate. FORM E WARRANT FOR WITNESS BERMUDA ISLANDS ) [blank] PARISH ) To wit To the Police Officers of Bermuda: (Name of witness summoned) having failed to appear as a witness on the hearing of a charge against (name of accused person) after having been duly served with a summons, you are hereby commanded to bring and have the said (name of witness) before the magistrate then present on [blank] next the [blank] day of 19[blank] to testify what he knows concerning the charge against the accused person. Given under my hand and seal this [blank] day of [blank] 19[blank]. A.B., Magistrate. FORM F (Section 30(3)) WARRANT TO APPREHEND CONVICTED PERSON FOR NON-PAYMENT OF FINE OR COSTS BERMUDA ISLANDS ) [blank] PARISH ) To wit 15

16 SUMMARY JURISDICTION ACT 1930 To the Police Officers of Bermuda: WHEREAS (name of convicted person) of (abode and description) was on the (*date of conviction) convicted in due form of law of the offence of (specify) and was thereupon *adjudged to pay a fine of (amount)/ordered to pay (amount) towards the costs of his prosecution: AND WHEREAS (amount) of the said *fine/costs remains due and unpaid at the date hereof: These are therefore to command you in Her Majesty's name forthwith to apprehend the said (name of convicted person) and to bring him before me or some other magistrate in Bermuda to show cause why he should not now be imprisoned in default of payment of the said *fine/costs and to be further dealt with according to law. Given under my hand this [blank] day of [blank] 19[blank]. AB [blank] Magistrate *Delete as necessary [The Act was brought into operation on 1 August 1930 by notice published in Gazette No. 28 of 1930] [Amended by: 1946 : : : : : : : : : : : : : : : : : : : : : : : : : : : : 43] 16