Section 8 is the Court’s toolkit for the case where the appeal cannot be decided on the appeal book alone. It is rarely invoked and worth knowing about.
“Necessary or expedient in the interests of justice”
For the purposes of this Act, the Supreme Court may, if it thinks it necessary or expedient in the interests of justice to do so — and there follow six paragraphs.
The powers are discretionary and share one condition. There is no separate test for each; the question in every case is whether exercising the power is necessary or expedient in the interests of justice.
Paragraph (a)
The Court may order the production of any document, exhibit or other thing connected with the proceedings the production of which appears to it necessary for the determination of the case.
This complements Order 7 Rule 32 of the Supreme Court Rules 2012, under which an exhibit that cannot be delivered to the registry is dealt with by the Associate stating the circumstances and giving information to enable the Registrar to cause the exhibit to be available at the court.
Where a physical exhibit matters and has not reached the Court, paragraph (a) is the answer.
Paragraphs (b) and (c)
The Court may order any persons who would have been compellable witnesses at the trial to attend and be examined before the Court, whether or not they were called at the trial, or order such a person to be examined on oath before (i) a Judge of the National Court; (ii) an officer of the Supreme Court; (iii) a magistrate of a court of summary jurisdiction; or (iv) any other person appointed by the Court — and may admit as evidence any deposition so taken.
The Court may receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness, and, if the appellant consents, of the husband or wife of the appellant in cases where that evidence could not have been given at the trial except with that consent.
The vocabulary — compellability, the accused as a competent but not compellable witness, spousal evidence by consent — belongs to criminal practice, and paragraph (c) expressly contemplates evidence from the appellant.
Note the machinery in paragraph (b): the examination need not be before the Supreme Court itself. A deposition taken before a National Court Judge, a Supreme Court officer, a magistrate or an appointed person may be admitted.
Paragraph (d) and Part IV
Where a question arising on the appeal involves prolonged examination of documents or accounts or any scientific or local investigation that cannot, in the opinion of the Court, conveniently be conducted before the Court, the Court may order the reference of the question for inquiry and report, in accordance with Part IV, by a referee appointed by the Court, and act on the report of the referee so far as it thinks fit to adopt it.
(1) Where a reference is made under section 8(1)(d), the referee subject to the Rules of Court, has such authority and shall conduct the reference in such manner as the Supreme Court directs, and shall be deemed, for the purpose of the conduct of the reference, to be an officer of the Supreme Court.
(2) The report of a referee shall, unless set aside by the Supreme Court, be deemed to be a finding of fact.
A referee’s report is not merely evidence to be weighed. Unless set aside, it is a finding of fact. A party dissatisfied with a report must apply to set it aside; simply arguing against it is not enough.
The residual powers
(e) exercise in relation to the proceedings of the Court any other powers that may for the time being be exercised by the National Court on appeals or applications.
(f) issue any warrants necessary for enforcing the orders or sentences of the Court.
Paragraph (e) works with section 6(2), which gives the Court all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court for the purposes of hearing and determining an appeal. Between them, there is little the National Court could do on an appeal that the Supreme Court cannot.
Section 8(2)
The Supreme Court shall not increase a sentence in a criminal proceeding by reason of, or in consideration of, any evidence given under Subsection (1).
So an appellant who succeeds in having further evidence received under section 8 does not risk a heavier sentence because of what that evidence shows. The Court’s power to increase a sentence in other circumstances is a separate question. See increasing a sentence.
Raising section 8
The Rules do not prescribe a form for a section 8 application. Order 13 Rule 15 requires interlocutory applications to be in Form 4 with a concise statement of the Court’s jurisdiction, and Order 11 Rule 9 allows an application to a Judge for directions where the manner or form of a procedure is not prescribed.
Raise it at the Directions Hearing under Order 13 Rule 8 rather than at the hearing. A reference to a referee, or an examination before an appointed person, cannot be arranged on the day.
Sources
- Supreme Court Act (Chapter 37) — ss 6, 8, 16, 33
- Supreme Court Rules 2012 — O 7 rr 32, 52–59; O 11 r 9; O 13 rr 8, 15
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.