§ 390 — Decision on appeal

390.—(1) At the hearing of the appeal, the appellate court may, if it considers there is no sufficient ground for interfering dismiss the appeal, or may —(a)

in an appeal from an order of acquittal —(i)

reverse the order and direct that further inquiry is to be made or that the accused is to be retried, or remit the matter, with the opinion of the appellate court, to the trial court; or

(ii)

find the accused guilty and pass sentence on the accused according to law;

(b)

in an appeal from a conviction —(i)

reverse the finding and sentence and acquit or discharge the accused or order the accused to be retried by a court of competent jurisdiction, or remit the matter, with the opinion of the appellate court, to the trial court;

(ii)

alter the finding, maintaining the sentence or, with or without altering the finding, reduce or enhance the sentence; or

(iii)

with or without reducing or enhancing the sentence, and with or without altering the finding, alter the nature of the sentence;

(c)

in an appeal as to sentence, reduce or enhance the sentence, or alter the nature of the sentence; or

(d)

in an appeal from any other order, alter or reverse the order.

(2) Nothing in subsection (1) is to be taken to prevent the appellate court from making such other order in the matter as it may think just, and by such order exercise any power which the trial court might have exercised.

(3) Despite section 375 and without limiting subsections (1) and (2), where an accused has pleaded guilty and been convicted on such plea, the appellate court may, upon hearing, in accordance with section 387, any appeal against the sentence imposed upon the accused —(a)

set aside the conviction;

(b)

make such order in the matter as it may think just; and

(c)

by such order exercise any power which the trial court might have exercised.

(4) Despite any provision in this Code or any written law to the contrary, when hearing an appeal against an order of acquittal or conviction or any other order, the appellate court may frame an altered charge (whether or not it attracts a higher punishment) if satisfied that, based on the records before the court, there is sufficient evidence to constitute a case which the accused has to answer.

(5) If the offence stated in the altered charge is one that requires the Public Prosecutor’s consent under section 10, then the appeal must not proceed before such consent is obtained, unless the consent has already been obtained for a prosecution on the same facts as those on which the altered charge is based.

(6) After the appellate court has framed an altered charge, it must ask the accused if the accused intends to offer a defence.

(7) If the accused indicates that the accused intends to offer a defence, the appellate court may, after considering the nature of the defence —(a)

order that the accused be tried by a trial court of competent jurisdiction; or

(b)

convict the accused on the altered charge (other than a charge which carries the death penalty) after hearing submissions on questions of law and fact and if it is satisfied that, based on its findings on the submissions and the records before the court, and after hearing submissions of the accused, there is sufficient evidence to do so.

(8) If the accused indicates that the accused does not intend to offer a defence, the appellate court may —(a)

convict the accused on the altered charge (other than a charge which carries the death penalty) if it is satisfied that, based on the records before the court, there is sufficient evidence to do so; or

(b)

order that the accused be tried by a trial court of competent jurisdiction, if it is not satisfied that, based on the records before the court, there is sufficient evidence to convict the accused on the altered charge.

(9) At the hearing of the appeal, the appellate court may on the application of the Public Prosecutor, and with the consent of the accused, take into consideration any outstanding offences which the accused admits to have committed for the purposes of sentencing the accused.

(10) The sentencing powers of the appellate court in the exercise of its appellate jurisdiction do not exceed the sentencing power of the trial court whose judgment, sentence or order is appealed against.

(11) To avoid doubt, everything done by the appellate court under this section is done in the exercise of its appellate jurisdiction.[19/2018]

—(1) At the hearing of the appeal, the appellate court may, if it considers there is no sufficient ground for interfering dismiss the appeal, or may —(a)

in an appeal from an order of acquittal —(i)

reverse the order and direct that further inquiry is to be made or that the accused is to be retried, or remit the matter, with the opinion of the appellate court, to the trial court; or

(ii)

find the accused guilty and pass sentence on the accused according to law;

(b)

in an appeal from a conviction —(i)

reverse the finding and sentence and acquit or discharge the accused or order the accused to be retried by a court of competent jurisdiction, or remit the matter, with the opinion of the appellate court, to the trial court;

(ii)

alter the finding, maintaining the sentence or, with or without altering the finding, reduce or enhance the sentence; or

(iii)

with or without reducing or enhancing the sentence, and with or without altering the finding, alter the nature of the sentence;

(c)

in an appeal as to sentence, reduce or enhance the sentence, or alter the nature of the sentence; or

(d)

in an appeal from any other order, alter or reverse the order.

(2) Nothing in subsection (1) is to be taken to prevent the appellate court from making such other order in the matter as it may think just, and by such order exercise any power which the trial court might have exercised.

(3) Despite section 375 and without limiting subsections (1) and (2), where an accused has pleaded guilty and been convicted on such plea, the appellate court may, upon hearing, in accordance with section 387, any appeal against the sentence imposed upon the accused —(a)

set aside the conviction;

(b)

make such order in the matter as it may think just; and

(c)

by such order exercise any power which the trial court might have exercised.

(4) Despite any provision in this Code or any written law to the contrary, when hearing an appeal against an order of acquittal or conviction or any other order, the appellate court may frame an altered charge (whether or not it attracts a higher punishment) if satisfied that, based on the records before the court, there is sufficient evidence to constitute a case which the accused has to answer.

(5) If the offence stated in the altered charge is one that requires the Public Prosecutor’s consent under section 10, then the appeal must not proceed before such consent is obtained, unless the consent has already been obtained for a prosecution on the same facts as those on which the altered charge is based.

(6) After the appellate court has framed an altered charge, it must ask the accused if the accused intends to offer a defence.

(7) If the accused indicates that the accused intends to offer a defence, the appellate court may, after considering the nature of the defence —(a)

order that the accused be tried by a trial court of competent jurisdiction; or

(b)

convict the accused on the altered charge (other than a charge which carries the death penalty) after hearing submissions on questions of law and fact and if it is satisfied that, based on its findings on the submissions and the records before the court, and after hearing submissions of the accused, there is sufficient evidence to do so.

(8) If the accused indicates that the accused does not intend to offer a defence, the appellate court may —(a)

convict the accused on the altered charge (other than a charge which carries the death penalty) if it is satisfied that, based on the records before the court, there is sufficient evidence to do so; or

(b)

order that the accused be tried by a trial court of competent jurisdiction, if it is not satisfied that, based on the records before the court, there is sufficient evidence to convict the accused on the altered charge.

(9) At the hearing of the appeal, the appellate court may on the application of the Public Prosecutor, and with the consent of the accused, take into consideration any outstanding offences which the accused admits to have committed for the purposes of sentencing the accused.

(10) The sentencing powers of the appellate court in the exercise of its appellate jurisdiction do not exceed the sentencing power of the trial court whose judgment, sentence or order is appealed against.

(11) To avoid doubt, everything done by the appellate court under this section is done in the exercise of its appellate jurisdiction.[19/2018]