Court of Appeal Rules 1981

PURSUANT to Section 102 of the Judicature Act 1980-81 as substituted by Section 2 of the Judicature Amendment Act 1981 and with the concurrence of the Rules Committee, His Honour the Chief Justice of the Cook Islands exercising the functions of High Commissioner pursuant to Article 7 of the Constitution and acting by and with the advice and consent of the Executive Council hereby makes the following rules:

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3. Sittings of Court of Appeal
4. Commencement of appeals
5. Leave of Court of Appeal required for appellant to be heard on grounds not stated in notice of appeal
6. Appeal may be adjourned
7. Court of Appeal or Chief Justice may grant leave for written submissions to be filed
8. Court of Appeal may enlarge time prescribed by Rules
9. Record to be as specified
10. Fees

11. Appeals to be by notice of motion
12. Abandonment of appeal upon failure to give security for costs
13. Appellant responsible for preparation of record
14. Procedure for hearing of appeal
15. Notice of hearing to be served upon respondent
16. Registrar to set appeal down for hearing
17. Appeal not to be brought after expiration of 30 days except by leave of High Court or Court of Appeal
18. Powers of Court of Appeal to extend time or amend grounds of appeal or make any order
19. Registrar to serve, notice of date of hearing upon the appellant and respondent
20. Dismissal of appeal for non-appearance
21. Appeal may be heard ex parte
22. Right to adduce new evidence
23. Costs

24. Appeals to be commence by notice of appeal or motion for leave to appeal
25. Registrar to procure from High Court the documents specified
26. Registrar to supply appellant with copies of documents upon request
27. Appellant to lodge with the Registrar within 6 weeks records specified
28. Registrar to prepare records where appellant is not represented.
29. Registrar to set down the appeal for hearing.
30. Abandonment of appeal for failure to comply with requirements of Rule 30
31. Registrar to notify final determination of the Court of Appeal to the Registrar of the High Court
32. Non-compliance by Appellant with rules
33. Forms

1. Title and commencement - (1) These Rules may be cited as the Court of Appeal Rules 1981.

"Appellant" includes a person who has been convicted and desires to appeal under these Rules:

"Record" means the aggregate of papers relating to an appeal (including the pleadings, proceedings, evidence and judgments) to be laid before the Court of Appeal on the hearing of the appeal:

"Respondent" includes any person who has been served with notice of appeal or who is entitled to be so served:

"Sentence" includes any order of the Court made on conviction with reference to the person convicted.

3. Sittings of Court of Appeal - (1) Sittings of the Court of Appeal shall be convened and constituted from time to time, and the time and place for the hearing of all Criminal and Civil Appeals shall be settled in accordance with directions to be given by the Chief Justice.

(2) Subject to subclause (3) of this rule the Court of Appeal shall sit in Rarotonga to hear and determine appeals.

(3) In the case of any appeal against conviction for any offence (whether or not the appeal is against the sentence also) or in the case of an appeal against the sentence imposed for any offence (whether or not the appeal is against the conviction also) or in the case of any other appeal which in the opinion of the Chief Justice it is expedient for the ends of justice and more convenient and in conformity with natural justice so to do, the Chief Justice may direct that the appeal be heard or determined by the Court in any place within or outside of the Cook Islands and in such case the appeal shall be heard and determined in the place where directed.

4. Commencement of appeals - All appeals to the Court of Appeal shall be commenced by filing with the Registrar a notice of appeal, or an order granting leave to appeal, as the case may be.

5. Leave of Court of Appeal required for appellant to be hear on grounds not stated in notice of appeal - The appellant shall not, without the leave of the Court of Appeal, urge or be heard in support of any ground of objection not stated in his notice of appeal but the Court of Appeal in deciding the appeal shall not be confirmed to the grounds so stated; provided that the Court of Appeal shall not rest its decision on any ground not stated in the notice of appeal, unless the respondent has had sufficient opportunity of contesting the case on that ground.

6. Appeal may be adjourned - If for any reason it appears right to adjourn an appeal, the Court of Appeal shall have full power to do so upon such terms and for such time as seems fit.

7. Court of Appeal or Chief Justice may grant leave for written submissions to be filed - The Court of Appeal or, if the Court is not in session, the Chief Justice may upon the application of any party, grant leave to the appellant to file with the Court and serve on the Respondent written argument in support of his appeal and for a respondent to file with the Court and serve on the appellant written argument in opposition to the appeal.

8. Court of Appeal may enlarge time prescribed by Rules - The Court of Appeal may enlarge the time prescribed by the Rules for the doing of anything to which these Rules apply.

9. Record to be as specified - The record shall be prepared on paper of foolscap size and may be printed, typed or cyclostyled. If typed or cyclostyled the spacing known as double spacing will be used and the margin will be ¼ of the width of the paper.

10. Fees - The fees set forth in the First Schedule hereto shall be the fees payable in respect of proceedings in the Court of Appeal.

11. Appeals to be by notice of motion - All appeals to the Court of Appeal shall be by notice of motion stating the grounds of the appeal and whether the whole or part only of the decision is complained of. The notice of motion shall be filed with the Registrar and shall be served on every party directly affected by the appeal.

12. Abandonment of appeal upon failure to give security for costs - If the appellant shall fail to give security for costs within the time specified in the Order granting leave to appeal the appeal shall be deemed to be abandoned.

13. Appellant responsible for preparation of record - The appellant shall be responsible for the preparation of the record which shall include copies of the following documents:

(b) Any interlocutory orders with all motions, affidavits and other documents filed in connection therewith:

(d) All exhibits to which it is considered necessary to make reference at the hearing of the appeal:

14. Procedure for hearing of appeal - When the appellant is ready to proceed with the hearing of the appeal but not in any event later than 3 months after the filing of the notice of appeal or of the order granting leave to appeal as the case may be he shall lodge with the Registrar:

15. Notice of hearing to be served upon respondent - On the same day or as soon as practicable thereafter the appellant shall serve or cause to be served upon the respondent a copy of the Praecipe to set the appeal down for hearing together with a copy of the record.

16. Registrar to set appeal down for hearing - Upon the lodging of the documents in accordance with Rule 14 hereof the Registrar will thereupon set down the appeal by entering the same in the list of appeals and it shall be heard according to its order in such list unless the Court of Appeal or the President thereof shall otherwise direct.

17. Appeal not to be brought after expiration of 21 days except by leave of High Court or Court of Appeal - No appeal to the Court of Appeal from any decision of the High Court shall be brought after the expiration of twenty one days from the time when the appellant first had notice thereof unless the High Court or the Court of Appeal shall enlarge the time for giving notice of appeal.

18. Powers of Court of Appeal to extend time or amend grounds of appeal or make any order - The Court of Appeal shall have power to extend the time for appealing, or to amend the grounds of appeal, or to make any other order on such terms as the Court shall think fit to ensure the determination on the merits of the real question in controversy between the parties.

19. Registrar to serve notice of date of hearing upon the appellant and respondent - The Registrar shall cause notice of the date of hearing to be served upon the appellant and the respondent not less than 10 days before such date.

20. Dismissal of appeal for non-appearance - If the appellant fails to appear in person or by counsel when his appeal is called on for hearing, the appeal shall, on proof of service upon him of notice of the hearing, stand dismissed with costs:

Provided that when an appeal has been dismissed owing to the non-appearance of the appellant or his counsel the Court of Appeal may, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.

21. Appeal may be heard ex parte - If the respondent fails to appear, in person or by counsel when the appeal is called for hearing, the Court of Appeal shall, on proof of service of notice of hearing, proceed to hear the appeal ex parte.

22. Right to adduce new evidence - (1) It shall not be open, as of right, to any party to an appeal to adduce new evidence in support of his original case, but a party may allege any facts essential to the issue which have come to his knowledge after the date of the decision from which the appeal is brought, and may adduce evidence in support of his allegations.

(2) The Court of Appeal may in any case, if it thinks fit, allow or require new evidence to be adduced, either by oral examination in Court, by affidavit, or by depositions taken before an examiner or commissioner.

23. Costs - The costs of proceedings in the Court of Appeal shall be in accordance with the Second Schedule to these rules; but costs shall in every case be in the discretion of the Court of Appeal which may make such order as in the circumstances may appear to the Court to be just.

24. Appeals to be commenced by notice of appeal or motion for leave to appeal - All appeals to the Court of Appeal in its criminal jurisdiction shall be commenced by a notice of appeal or a motion for leave to appeal as the circumstances may require. Such notice or motion shall be signed by the appellant personally or by a solicitor or counsel acting on the appellant's behalf.

25. Registrar to procure from High Court the documents specified - Upon receipt of a notice of appeal or order granting leave to appeal the Registrar shall procure from the High Court the following documents:

(e) A copy of the formal conviction and sentence, and of any ancillary order made by the High Court in connection therewith:

(g) A list of previous convictions, if any, in the case of an appeal against sentence.

26. Registrar to supply appellant with copies of documents upon request - The Registrar will upon request supply to the appellant a copy of the above documents to enable the appellant to prepare the record; provided that the appellant shall unless the High Court orders otherwise pay a fee of 15 cents per folio of 72 words for notes of evidence, copies of exhibits and notes of reasons for judgment.

27. Appellant to lodge with the Registrar within 6 weeks records specified - The appellant will within a period of six weeks following the filing of the notice of appeal or of the order granting leave to appeal as the case may be lodge with the Registrar -

28. Registrar to prepare records where appellant is not represented - If the appellant shall not be represented by a solicitor then it shall be the duty of the Registrar to prepare the record and the copies for the use of the Judges of the Court of Appeal and to have service of two copies effected on the Attorney-General and the Prosecuting Officer.

29. Registrar to set down the appeal for hearing - Upon the lodgment by the appellant or the preparation and service by the Registrar of the copies of the record as the case may be the Registrar will thereupon set down the appeal for hearing by entering the same in the list of appeals and it shall come on for hearing according to its order in such list unless the Court of Appeal or the Chief Justice thereof shall otherwise direct.

30. Abandonment of appeal for failure to comply with requirements of Rule 27 - If upon the expiration of six weeks from the date o filing notice of appeal or of the order granting leave to appeal as the case may be the appellant shall have failed to prepare and lodge the record as provided in Rule 30 hereof then the appeal shall be determined to have been abandoned.

31. Registrar to notify final determination of the Court of Appeal to the Registrar of the High Court - On the final determination of an appeal the Registrar shall in such manner as he thinks most convenient, notify the Registrar of the High Court of the decision of the Court of Appeal and of any orders or directions made or given by the Court of Appeal in respect of such appeal or any matter connected therewith.

32. Non-compliance by Appellant with rules - Non-compliance on the part of an appellant with these rules or with any rule of practice for the time being in force under the Act shall not prevent the further prosecution of his appeal if the Court of Appeal or the President thereof considers that such non-compliance was not wilful and that it may be waived or remedied by amendment or otherwise. The Court of Appeal or the President thereof may in such manner as is thought proper direct the appellant to remedy such non-compliance and upon the proper action being taken by the appellant the appeal shall proceed.

33. Forms - The forms set out in the Third Schedule to these rules shall as far as practicable be used for all documents filed in the Court of Appeal. Where no express form is given the document will, as closely as may be, follow the practice of the High Court.

Filing notice of motion of appeal	$4.00
Filing case	$1.00
Setting down case on appeal or on removal from the High Court	$3.00
Hearing case on appeal or removed For the first day or part thereof For each succeeding day or part thereof	$10.00 $4.00
Sealing any order Sealing any duplicate thereof	$3.00 $2.00
Sealing any document not otherwise provided for Sealing any duplicate thereof	$3.00 $2.00
Filing any motion	$2.00
Filing any document not otherwise provided for Matters not specified above: the fees charged in respect of similar matters in civil proceedings in the High Court	$1.00

		Under 400	$400 to $1000	Over $1000
1.	Drawing and settling case	50	75	100
2.	Setting down a case and arguing to judgment	75	100	150
3.	For every day of hearing after the first: A sum to be fixed by the Court, not exceeding $	50	75	100
4.	Extra counsel, if certified for: Not exceeding $.............. each day	25	50	75
5.	Cost of printing, typewriting or cyclostyling: Whatever the amount paid, or, if the typewriting or cyclostyling has been carried out in the office of the solicitor for the appellant, such sum as may be allowed by the Registrar in that behalf:
6.	If affidavits are allowed, or evidence is taken orally: Such costs in respect thereof as are fixed by the Courts:
7.	If money is not claimed, costs shall be on such of the abovementioned scales as shall be determined by the Courts, having regard to the importance of the case.
8.	If different questions are involved, the costs may be apportioned by the Courts.

Name of appellant:______________________________________________________
Offence of which convicted: ______________________________________________
Place of conviction: _____________________________________________________
Date of conviction: _____________________________________________________
Sentence: _____________________________________________________________

I, the abovenamed appellant, hereby give you notice that I desire to appeal to the Court of Appeal against my (conviction) (sentence) (conviction and sentence) on the grounds set forth below, and I give answers as follows to the following questions:

1. Did the Judge before whom you were tried grant you a certificate that it was a fit case for appeal? ____________________________________

3. (a) Do you desire to apply for leave to call any witnesses on your appeal?____________

4. If your appeal or application is out of time, what do you submit as reasons why the Court should nevertheless entertain your appeal or application?
_________________________________________________________________________
_________________________________________________________________________

5. (a) If you are not on bail, do you desire to be admitted to bail?_____________________

(b) If so, what reasons do you submit for being admitted to bail? _______________

(You are referred to Rule 5 of the principal rules. You are informed that you may present your case and argument in writing instead of by oral argument if you so desire, and any case or argument so presented will be considered by the Court. If you desire to present your case and argument in writing set out here as fully as you think right your case and argument in support of your appeal. Additional sheets may be attached to this form).

WHEREAS (Full name) was on the ___________day of__________ 19_____convicted within the meaning of the Judicature Act 1980-81 before me for the offence of (Insert name of offence), and was thereupon sentenced by me to ____________________________________

This is to give you notice that the Court of Appeal has considered the matter of your appeal and has finally determined the same and has this day given judgement to the effect following-namely, (that your appeal be dismissed) or (that the sentence imposed upon you be altered from ________________to ___________________________), (or as the case may be).

DATED at ________________this _____________ day of________________ 19___________

THIS is to give you notice that the Court of Appeal has considered the matter of your application for -

(Leave to extend the time within which you may give (notice of appeal) or (Notice of application for leave to appeal),

Permission to be present during the proceedings in your (appeal) (application for leave to appeal), (or as the case may be) and has finally determined the same, and has this day given judgment to the effect following namely, (that you have .............. days from the _________day of____________ 19__________within which you may give notice of appeal), (or as the case may be).

DATED at ___________ this ____________ day of _______________19_________________

WHEREAS A.B. an appellant under the Judicature Act 1980-81, has been released by this Court on bail, and it has now been ordered by this Court that a warrant be issued for his apprehension and commital to prison: This is to command you to whom this warrant is addressed to arrest the said A.B. and to lodge the said A.B. in the prison at ..................... there to be imprisoned by the Gaoler of the said prison until further order of this Court.

To W.T. Constable (By his proper title), of ________________________________________
and to all other constables.

To the Registrar of the Court of Appeal
I, (full name), .having been convicted in the High Court at _____________________for the offence of _________________, and having been desirous of appeal and having sent to the Court of Appeal notice to that effect, do hereby give you notice that I do not intend further to prosecute my appeal and that I hereby abandon all further proceedings in regard thereto as from the date hereof.

Witness of signature of (Full name):
Signature of Witness:____________________________
Address:______________________________________
Description:___________________________________

(Full Name), of (address, occupation) (hereinafter called the Appellant) has appealed against his conviction (or sentence or conviction and sentence) for __________________________and (full name, address and occupation) has agreed to act as surety.

I, the Appellant, bind myself to perform the following obligations that is to say:

(1) to attend personally before the Court of Appeal at the time fixed for the hearing of the appeal and on any day to which the hearing may be from time to time adjourned (and in the meantime to report _______________at the Police Station at ___________)

(2) to prosecute with due diligence an appeal against such conviction (or sentence or conviction and sentence).

And I, the Appellant, acknowledge myself bound to forfeit to the Government the sum of $_______ in the event that I fail to perform any of the above conditions; and I, the surety, acknowledge myself bound to forfeit to the Government the sum of $____________in the event that the appellant fails to attend.

TAKE notice that if you, the above-named appellant fail to perform the conditions following or any of them, namely (here set out conditions as in bond) then you will forfeit to the Government of the Cook Islands the sum of $_________________

DATED at ________________this ________________day of ________________ 19________

TAKE notice that if the above-named appellant fails to attend personally before the Court of Appeal at the time fixed for the hearing of the Appeal or on any day to which the hearing may be from time to time adjourned then you will forfeit to the Government of the Cook Islands the sum of $........................

Cook Islands Court Rules

Court of Appeal Rules 1981