PART IV - PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS AND PROCEEDINGS

93 Person arrested to be brought before the court without delay

A person arrested under a warrant of arrest shall (subject to the provisions of section 90 as to security) without unnecessary delay be taken before the court before which he is required by law to be brought.

PART IV - PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS AND PROCEEDINGS

133 Power to summon material witness, or examine person present

Provided that the prosecutor or the advocate of the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable such cross-examination to be adequately prepared, if, in its opinion, either party may be prejudiced by the calling of any such person as a witness.

PART IV - PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS AND PROCEEDINGS

138 Parties may examine witnesses

(1) The parties to any proceeding under this Code in which a commission is issued may respectively forward any interrogatories in writing which the court or magistrate directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon such interrogatories.

(2) Any such party may appear before such magistrate by advocate, or, if not in custody, in person, and may examine, cross-examine, and re-examine (as the case may be) the said witness.

PART IV - PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS AND PROCEEDINGS

143 Right of reply

In cases where the right of reply depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.

PART IV - PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS AND PROCEEDINGS

176 Accused may be defended by an advocate or other person

Any person accused of an offence before any criminal court, or against whom proceedings are instituted under this Code in any such court, may be defended by an advocate or, with the leave of the court, by any person.

PART V - MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS

179 Evidence to be taken in presence of accused

Except as otherwise expressly provided, all evidence taken in any inquiry or trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his advocate (if any).

PART V - MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS

181 Language of the court

The language of the court in the case of both the High Court and magistrate’s courts shall be English.


182 Interpretation of evidence to accused

(1) Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open court in a language which he understands.

(2) When documents are put in for the purpose of formal proof it shall be in the discretion of the court to interpret as much thereof as appears necessary.

PART VI - PROCEDURE IN TRIALS BEFORE MAGISTRATES’ COURTS


185 Non-appearance of complainant at hearing

(1) If, in any case which a magistrate’s court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his advocate, the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either admit the accused to bail or remand him to prison, or take such security for his appearance as the court shall think fit.

(2) The expression “advocate” in this section and in sections 187 and 189 shall in relation to a complainant include a public prosecutor.

ART VI - PROCEDURE IN TRIALS BEFORE MAGISTRATES’ COURTS

186 Court may proceed with hearing in absence of accused in certain cases

Notwithstanding the provisions of section 179, if an accused person charged with any offence punishable with imprisonment for a term not exceeding 6 months or a fine not exceeding $100 or both such imprisonment and fine does not appear at the time and place appointed in and by the summons, or by any bond for his appearance that he may have entered into, and his personal attendance has not been dispensed with under section 86, the court may, on proof of the proper service of the summons a reasonable time before, or on production of the bond, as the case may be, proceed to hear and determine the case in the absence of the accused or may adjourn the case and issue a warrant for the arrest of the accused in accordance with the provisions of section 89.

PART VI - PROCEDURE IN TRIALS BEFORE MAGISTRATES’ COURTS


190 Non-appearance of parties after adjournment

(1) If at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order of adjournment, such court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit.

(2) If the accused person who has not appeared as aforesaid is charged with felony, or if the court, in its discretion, refrains from convicting the accused in his absence, the court shall issue a warrant for the apprehension of the accused person and cause him to be brought before the court.


191 Conviction in absence of accused may be set aside

If the court convicts the accused person in his absence, it may set aside such conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits.


192 Commencement of sentence passed in absence of accused

Any sentence passed under section 186 or 190 shall be deemed to commence from the date of apprehension, and the person effecting such apprehension shall endorse the date thereof on the back of the warrant of commitment.

PART VI - PROCEDURE IN TRIALS BEFORE MAGISTRATES’ COURTS

193 Accused to be called upon to plead

(1) The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge.

(2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary.

PART VI - PROCEDURE IN TRIALS BEFORE MAGISTRATES’ COURTS

194 Procedure on plea of not guilty

(1) If the accused person does not admit the truth of the charge, the court shall proceed to hear the witnesses for the prosecution and other evidence (if any).

(2) The accused person or the advocate or other person defending him may put questions to each witness produced against him.

(3) If the accused person is not defended by an advocate or other person, the court shall, at the close of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to that witness and shall record his answer.

PART VI - PROCEDURE IN TRIALS BEFORE MAGISTRATES’ COURTS

196 The defence

(1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).

(2) If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of such witnesses.

PART VII - PROVISIONS RELATING TO THE COMMITTAL OF ACCUSED PERSONS FOR TRIAL BEFORE THE HIGH COURT

213 Provisions as to taking statement or evidence of accused person

(1) If, after consideration of the statements of witnesses tendered to it in accordance with the provisions of section 209 (1) (b) or the examination of witnesses called on behalf of the prosecution in accordance with the provisions of section 210 (1) as the case may be, the court considers that such statements disclose, or on the evidence as it stands there are sufficient grounds for committing the accused for trial, the magistrate shall satisfy himself that the accused understands the charge and shall ask the accused whether he wishes to make a statement in his defence or not and, if he wishes to make a statement, whether he wishes to make it on oath, or not; and the magistrate shall also explain to the accused that he is not bound to make a statement and that his statement, if he makes one, will be part of the evidence at the trial.

(2) Everything which the accused person says, either by way of statement or evidence, shall be recorded in full and shall be shown or read over to him, and he shall be at liberty to explain or add to anything contained in the record thereof.

(3) When the whole is made conformable to what he declares is the truth, the record thereof shall be attested by the magistrate, who shall certify that such statement or evidence was taken in his presence and hearing and contains accurately the whole statement made, or evidence given, as the case may be, by the accused person who shall sign or attest by his mark such record; and if he refuses, the court shall add a note of his refusal, and the record may be used as if he had signed or attested it.

PART VII - PROVISIONS RELATING TO THE COMMITTAL OF ACCUSED PERSONS FOR TRIAL BEFORE THE HIGH COURT

214 Evidence and address in defence

(1) Immediately after complying with the requirements of section 213 relating to the statement or evidence of the accused person, and whether the accused person has or has not made a statement or given evidence, the magistrate shall ask him whether he desires to call witnesses on his own behalf.

(2) The magistrate shall take the evidence of any witnesses called by the accused person in like manner as in the case of the witnesses for the prosecution, and every such witness, not being merely a witness to the character of the accused person, shall be bound by recognisance to appear and give evidence at the trial of such accused person.

(3) If the accused person states that he has witnesses to call, but that they are not present in court, and the magistrate is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the magistrate may adjourn the inquiry and issue process, or take other steps, to compel the attendance of such witnesses, and on their attendance shall take their depositions and bind them by recognisance in the same manner as witnesses under subsection (2).

(4) In any preliminary inquiry under this Part the accused person or the advocate or other person defending him shall be at liberty to address the court —
(a) after the reading over of the statements of witnesses in accordance with the provisions of section 209(1)(b) or the examination of witnesses called on behalf of the prosecution in accordance with the provisions of section 210, as the case may be;
(b) if no witnesses for the defence are to be called, immediately after the statement or evidence of the accused person;
(c) if the accused person elects —

(i) to give evidence or to make a statement and witnesses for the
defence are to be called, or
(ii) not to give evidence or to make a statement, but to call witnesses, immediately after the evidence of such witnesses.

(5) If the accused person or the advocate or other person defending him addresses the court in accordance with the provisions of paragraph (a) or (c) of subsection (4) the prosecution shall have the right of reply.

PART VIII - PROCEDURE IN TRIALS BEFORE THE HIGH COURT ON INFORMATION

247 Plea of “guilty”

If the accused pleads “guilty” the plea shall be recorded and he may be convicted thereon.

PART VIII - PROCEDURE IN TRIALS BEFORE THE HIGH COURT ON INFORMATION

252 Cross-examination of witnesses for the prosecution

The witnesses called for the prosecution shall be subject to cross-examination by the accused person or the advocate or other person defending him, and to re-examination by the public prosecutor or advocate for the prosecution.

PART VIII - PROCEDURE IN TRIALS BEFORE THE HIGH COURT ON INFORMATION

255 Statement of accused

The statement or evidence (if any) of the accused person duly recorded by or before the committing magistrate, and whether signed by the accused person or not, may be given in evidence without further proof thereof, unless it is proved that the magistrate purporting to sign the statement or evidence did not in fact sign it.

PART VIII - PROCEDURE IN TRIALS BEFORE THE HIGH COURT ON INFORMATION

257 The defence

The accused person or the advocate or other person defending him may then open his case, stating the facts or law on which be intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution; and the accused person may then give evidence on his own behalf and he or the advocate or other person defending him may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.

PART VIII - PROCEDURE IN TRIALS BEFORE THE HIGH COURT ON INFORMATION

258 Additional witnesses for the defence

The accused person shall be allowed to examine any witness not previously bound over to give evidence at the trial if such witness is in attendance; and if he apprehends that any such witness will not attend the trial voluntarily, he shall be entitled to apply for the issue of process to compel such witness’s attendance:
Provided that no accused person shall be entitled to any adjournment to secure the attendance of any witness unless he shows that he could not by reasonable diligence have taken earlier steps to obtain the presence of the witness.

PART VIII - PROCEDURE IN TRIALS BEFORE THE HIGH COURT ON INFORMATION

263 Calling upon the accused

If the accused person is convicted, or if the accused person pleads guilty, it shall be the duty of the Registrar or other officer of the court to ask him whether he has anything to say why sentence should not be passed upon him according to law, but the omission so to ask him shall have no effect on the validity of the proceedings.

Part 2 – Bill of Rights
Division 3 – Protection of the fundamental rights and freedoms
Subdivision A – Protection Generally
22 Protection of Law
(1) This section shall be read subject to the provisions of this Part, and in particular to —
(a) section 31 (disciplined forces of Tuvalu); and
(b) section 32 (foreign disciplined forces); and
(c) section 33 (hostile disciplined forces).
(2) If a person is charged with an offence, unless the charge is withdrawn he shall be given a fair hearing within a reasonable time by an independent and impartial court established by law.
(3) A person charged with an offence —
(a) subject to subsection (14)(a), shall be presumed to be innocent
until —
(i) he is proved guilty; or
(ii) he has pleaded guilty and the plea has been accepted by the court; and
(b) shall be informed as soon as practicable, in detail and in a language that he understands, of the precise nature and particulars of the offence charged, and if the information is not given in writing it shall be confirmed in writing as soon as practicable; and
(c) shall be given adequate time and facilities for the preparation of his
defence, including time to study and fully understand the precise charge against him, and its possible consequences; and
(d) shall be given reasonable facilities to consult, at his own expense, a
representative of his own choice; and
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a representative of his own choice; and
(f) subject to subsection (14)(b), shall be given adequate facilities —
(i) to examine, in person or by his representative, the witnesses called before the court by the prosecution; and
(ii) to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on conditions no less advantageous than those applying to witnesses called by the prosecution; and
(g) shall be permitted to have without payment the assistance of a competent interpreter, if he cannot adequately understand the language used at the trial or any part of the trial.
(4) Except with his consent, the trial shall not take place in his absence unless —
(a) he behaves in such a way as to make it impracticable or unreasonable to continue the proceedings in his presence; and
(b) the court orders his removal and the continuance of the trial in his absence.
(5) When a person is tried for an offence, the accused person or a person authorized by him for the purpose is entitled, on request and on payment of such reasonable fee (if any) as is prescribed, to be given within a reasonable time after judgment a copy, for the use of the accused person, of any record of the proceedings made by or on behalf of the court.
(6) No-one shall be convicted of an offence on account of an act that was not at the time of the doing of the act, an offence or a legal element of an offence.
(7) No penalty shall be imposed for an offence that is more severe in amount or in kind than the maximum that might have been imposed for the offence at the time when it was committed.

(8) Subject to subsection (14)(c), no-one who shows that he has been tried for an offence by a competent court and was either —
(a) convicted; or
(b) acquitted,
shall again be tried for —
(c) the same offence; or
(d) any other offence of which he could have been convicted at the trial of that offence,
except on the order of a superior court in the course of appeal or review
proceedings relating to the conviction or acquittal.
(9) No-one shall be tried for an offence if he shows that —
(a) he has been pardoned for the offence; and
(b) if the pardon was a conditional pardon, he has complied with the conditions of the pardon.
(10) No-one who is tried for an offence shall be compelled to give evidence at the trial.
(11) A court or other adjudicating authority prescribed by law for the determination of the existence or extent of a civil right or obligation shall be —
(a) established or recognised by law; and
(b) independent and impartial,
and where proceedings for such a determination are instituted by a person before such a court or authority the case shall be given a fair hearing within a reasonable time.
(12) Subject to subsection (13), except with the consent of all the parties to the proceedings —
(a) all proceedings before a court; and
(b) all proceedings before any other adjudicating authority for the determination of the existence or extent of any civil right or obligation,
including the announcement of the decision, shall be held m public.
(13) Subsection (12) does not prevent the court or other authority from excluding from the proceedings persons other than the parties, and the representatives in the proceedings of the parties, to such extent as the court or authority
(a) is by law empowered to do so and thinks it necessary or desirable to do so
(i) if publicity would not be in the interests of justice; or
(ii) in interlocutory proceedings, that is to say, in proceedings of a kind described in subsection (16); or
(iii) in the interests of —
(A) decency; or
(B) public morality; or
(C) the welfare of persons under the age of 18 years; or
(D) the protection of the privacy of persons concerned in the proceedings; or
(b) is by law empowered or required to do so in the interests of —
(i) defence; or
(ii) public safety; or
(iii) public order.
(14) Nothing in or done under a law shall be considered to be inconsistent with —
(a) subsection (3)(a) - to the extent that the law imposes upon a person charged with an offence the burden of proving or disproving certain facts which are particularly within his knowledge or his capacity to prove or disprove; or
(b) subsection (3)(f) - to the extent that the law imposes reasonable conditions that must be satisfied if witnesses called on behalf of an accused person are to be paid expenses out of public funds; or
(c) subsection (8) - subject to subsection (15), to the extent that the law authorizes a court to try a member of a disciplined force even though he has been tried and either —
(i) convicted; or
(ii) acquitted, under the disciplinary law of that force.
(15) In a case to which subsection 14(c) applies, the court that tries the member shall, in sentencing him to punishment, take into account any punishment given to him under the disciplinary law.
(16) In subsection (13)(a)(ii), “interlocutory proceedings” refers to any judicial proceedings that —
(a) occur during or for the purposes of some other legal proceedings (referred to in this subsection as “the principal proceedings”); and
(b) are incidental to the principal proceedings; and
(c) do not finally dispose of the principal proceedings.

PART II

BILL OF RIGHTS

DIVISION 3 - PROTECTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS

Subdivision A - Protection Generally

22 Protection of law

(1) This section shall be read subject to the provisions of this Part, and in particular to —

(a) section 31 (disciplined forces of Tuvalu); and
(b) section 32 (foreign disciplined forces); and
(c) section 33 (hostile disciplined forces).

(2) If a person is charged with an offence, unless the charge is withdrawn he shall be given a fair hearing within a reasonable time by an independent and impartial court established by law.

(3) A person charged with an offence —

(a) subject to subsection (14)(a), shall be presumed to be innocent until —

(i) he is proved guilty; or
(ii) he has pleaded guilty and the plea has been accepted by the court; and

(b) shall be informed as soon as practicable, in detail and in a language that he understands, of the precise nature and particulars of the offence charged, and if the information is not given in writing it shall be confirmed in writing as soon as practicable; and

(c) shall be given adequate time and facilities for the preparation of his defence, including time to study and fully understand the precise charge against him, and its possible consequences; and

(d) shall be given reasonable facilities to consult, at his own expense, a representative of his own choice; and

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a representative of his own choice; and

(f) subject to subsection (14)(b), shall be given adequate facilities —

(i) to examine, in person or by his representative, the witnesses called before the court by the prosecution; and
(ii) to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on conditions no less advantageous than those applying to witnesses called by the prosecution; and

(g) shall be permitted to have without payment the assistance of a competent interpreter, if he cannot adequately understand the language used at the trial or any part of the trial.

(4) Except with his consent, the trial shall not take place in his absence unless —

(a) he behaves in such a way as to make it impracticable or unreasonable to continue the proceedings in his presence; and

(b) the court orders his removal and the continuance of the trial in his absence.

(5) When a person is tried for an offence, the accused person or a person authorized by him for the purpose is entitled, on request and on payment of such reasonable fee (if any) as is prescribed, to be given within a reasonable time after judgment a copy, for the use of the accused person, of any record of the proceedings made by or on behalf of the court.

(6) No-one shall be convicted of an offence on account of an act that was not at the time of the doing of the act, an offence or a legal element of an offence.

(7) No penalty shall be imposed for an offence that is more severe in amount or in kind than the maximum that might have been imposed for the offence at the time when it was committed.

(8) Subject to subsection (14)(c), no-one who shows that he has been tried for an offence by a competent court and was either —

(a) convicted; or
(b) acquitted,

shall again be tried for —

(c) the same offence; or
(d) any other offence of which he could have been convicted at the trial of that offence, except on the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

(9) No-one shall be tried for an offence if he shows that —

(a) he has been pardoned for the offence; and
(b) if the pardon was a conditional pardon, he has complied with the conditions of the pardon.

(10) No-one who is tried for an offence shall be compelled to give evidence at the trial.

(11) A court or other adjudicating authority prescribed by law for the determination of the existence or extent of a civil right or obligation shall be —

(a) established or recognised by law; and
(b) independent and impartial, and where proceedings for such a determination are instituted by a person before such a court or authority the case shall be given a fair hearing within a reasonable time.

(12) Subject to subsection (13), except with the consent of all the parties to the proceedings —

(a) all proceedings before a court; and
(b) all proceedings before any other adjudicating authority for the determination of the existence or extent of any civil right or obligation, including the announcement of the decision, shall be held m public.

(13) Subsection (12) does not prevent the court or other authority from excluding from the proceedings persons other than the parties, and the representatives in the proceedings of the parties, to such extent as the court or authority

(a) is by law empowered to do so and thinks it necessary or desirable to do so

(i) if publicity would not be in the interests of justice; or
(ii) in interlocutory proceedings, that is to say, in proceedings of a kind described in subsection (16); or
(iii) in the interests of —

(A) decency; or
(B) public morality; or
(C) the welfare of persons under the age of 18 years; or
(D) the protection of the privacy of persons concerned in the proceedings; or

(b) is by law empowered or required to do so in the interests of —

(i) defence; or
(ii) public safety; or
(iii) public order.

(14) Nothing in or done under a law shall be considered to be inconsistent with —

(a) subsection (3)(a) - to the extent that the law imposes upon a person charged with an offence the burden of proving or disproving certain facts which are particularly within his knowledge or his capacity to prove or disprove; or

(b) subsection (3)(f) - to the extent that the law imposes reasonable conditions that must be satisfied if witnesses called on behalf of an accused person are to be paid expenses out of public funds; or

(c) subsection (8) - subject to subsection (15), to the extent that the law authorizes a court to try a member of a disciplined force even though he has been tried and either —

(i) convicted; or
(ii) acquitted, under the disciplinary law of that force.

(15) In a case to which subsection 14(c) applies, the court that tries the member shall, in sentencing him to punishment, take into account any punishment given to him under the disciplinary law.

(16) In subsection (13)(a)(ii), “interlocutory proceedings” refers to any judicial proceedings that —

(a) occur during or for the purposes of some other legal proceedings (referred to in this subsection as “the principal proceedings”); and

(b) are incidental to the principal proceedings; and

(c) do not finally dispose of the principal proceedings.