Criminal Procedure Code > BOOK IV TRIAL 1

BOOK IV TRIAL

TITLE I

Trial

Chapter 1. General Provisions

Art. 94.—Adjournment. -- Conditions.

(1) The court may of its own motion or on the application of the prosecution or the defense adjourn any hearing at any stage thereof where the interests of justice so require.

(2) An adjournment may not be granted unless:

(a) The prosecutor, public or private, or the accused fails for good cause to appear; or

(b) Witnesses for the prosecution or the defense are not present; or

(c) In a trial other than that of a case committed on preliminary inquiry to the High Court, the prosecution require time for investigation; or

(d) Further evidenced requires to be produced; or

(e) Evidence is produced either by the prosecution or the defense which takes the other side by surprise and the production of which could not have been foreseen; or

(f) The charge has been altered or added to and the prosecutor or the accused requires time to reconsider the prosecution or defense; or

(g) The accused has not been served with a copy of the charge or of the preliminary inquiry or has been served too short a time before the trial to enable him properly to prepare his defence: Or

(h) Prior sanction for a prosecution is required before the trial may start: or

(i) A decision in the trial cannot be given unless other proceedings be first completed: or

(j) The mental stability of an accused requires to be established by an expert: or

(k) The court considers that the accused, if a young person, should be placed under observation: or

(l) The trail cannot be completed in one day and is adjourned to the following day.

(3) No adjournment under paragraphs (a) and (f)-(h) inclusive shall be granted for more than one week.

Art.95-New adjournment and summonses.

(1) Subject to the provisions of sub-art. (3) of Art. 94, the court shall adjourn the hearing for such time only as is sufficient to enable the purpose for which the adjournment was granted to be carried out.

(2) Where the purpose for which the adjournment was granted has not been carried out for a reason not attributable to the fault of the prosecution or the defence, a further adjournment of the same or less duration shall be granted.

(3) Where a hearing has been adjourned under paragraphs (c) or (i)-(k) of Art.94 (2), the court shall, when the purpose for which the adjournment was granted has been carried out, issue new summonses to the parties and witnesses.

Art.96-Effect of adjournment.

(1) On granting an adjournment, the curt shall make such order as is necessary to ensure that the purpose for which the adjournment is granted is carried out. This shall include the issue of warrants on the conditions laid down in Art. 33, 53 and 125.

(2) Where an adjournment has been granted under paragraphs (j) or (k) of Art. 94 (2) the court shall order that the accused be remanded to a place where his state of mind can be examined into by an expert.

Art.97-Exihibits.

All exhibits including depositions and statements under Art. 27 and 30 shall be marked and numbered by the registrar of the court. Such exhibits shall be kept by the registrar in a safe place and shall not be withdrawn without an order of the court.

Art.98-Contents of record.

(1) The record of a trial shall be signed by the court and shall contain:

(a) A copy of the complaint or accusations:

(b) The record of the preliminary inquiry. If any:

(d) The date on which the accused was first brought before a court:

(e) The charge filed by the public or private prosecutor and any alterations or additions thereto and in the case of a private prosecution the certificate of the public prosecutor shall be attached;

(f) The plea of the accused;

(g) A copy of the opening address of the public or private prosecutor:

(h) A full record of the evidence of all the witnesses including the cross examination and the re-examination:

(i) A note of any objection made by the prosecutor or the accused and the ruling given thereon. Such not shall be made at the time the objection was raised and where made during the giving of evidence by a witness the record of the evidence shall be interrupted and the note inserted in the record at the point where such evidence was interrupted:

(j) A note of the exhibits admitted as evidence and the number attached thereto including whether the exhibit has been put in by the prosecutor or the accused;

(k) A full not of any submission on points of law and the ruling thereon. Such not shall be included in the recorded at the time when the submission was made;

(l) A not of all adjournments granted and the date to which the trail is adjourned together with a note of the reasons for granting such ad-journment;

(m) A not that the prosecutor and the accused have been informed of their right of appeal.

(2) The record of the trail at each hearing shall start with:

(a) The name of the case and number;

(b) The date and time;

(d) The names of the judges.

(3) The record of the trial at each hearing shall close with a note of the time of closure and the dated and time to which the hearing is adjourned.

Chapter 2 –Place of Trial

Art.99-Ordinay place of trial.

Every offence shall be tried by the court within the local limits of whose jurisdiction it was committed.

Art. 100-Accused triable in place where act is dang or where consequences ensued.

Where a person is accused of the commission of any offence by reason of anything which has been done and of any consequence which has ensued such offence may be tried by a court within the local limits of whose jurisdiction any such thing has been done or any such consequence has ensued.

Art. 101-Place of trial where act is an offence by reason of relation to other offence.

Where an act is an offence by reason of its relation to another offence a charge of the first mentioned offence may be tried by a court within the local limits of whose jurisdiction either act was done.

Art.102-Trail where place of offence is uncertain.

(a) Where it is uncertain in which of several local areas an offence was committed; or

(b) Where an offence is committed partly in one local area and partly in another; or

(d) Where an offence consists of several acts done in different local area, it may be tied by a court having jurisdiction over any of such local areas.

Art 103-Offence committed on a journey.

An offence committed whilst the offender is in the course of performing a journey or voyage may be tried by a court through or into the local limits of whose jurisdiction the offender of the person against whom or the thing in respect of which the offence was committed passed in the course of that journey or voyage.

Art 104-Place of trial offence committed outside Ethiopia on an Ethiopian ship or aircraft.

Art 105-Court having jurisdiction in cases of reinstatement.

Requests for reinstatement shall be brought before the court having passed the sentence the cancellation of which is sought.

Art-106-Change of venue.

Whenever it is made to appear to the High Court by application before a trial has started either by the public prosecutor or by the accused:

(a) That a fair and impartial trail cannot be held in any criminal court subordinate thereto; or

(b) That some question of law of unusual difficulty is likely to arise; or

(d) The such an order is expedient for the ends of justice or is required by any provision of this Code,

It may make an order against which no appeal shall lie to the effect that:

(I) any offence be tried by nay court not empowered under the provisions of Art. 99-104 of this Chapter but in other respects competent to try such offence;

(II) an accused person be committed for trail to itself.

Art 107-Public prosecutor to direct place of trial.

In cases under Art. 100-104, 116 or 117 the public prosecutor shall decide the court in which the charge shall be filed and on the filing of the charge in accordance with such decision the court shall have jurisdiction.

Chapter 3-The Charge

Art 108-Priniciple.

(1) No person may be tried for an offence other than a petty offence unless a charge has been framed in accordance with the provisions of this Chapter.

(2) The provisions of this Chapter shall apply to charges framed:

(a) By the public prosecutor, whether the case is to be tried by the High Court or a subordinate court; and

(b) By the private prosecutor, where he has been authoresses to conduct a private prosecution.

(3) The Provision of this Chapter shall not apply in case concerning young person’s unless an order to the contrary be made under Art.172.

Art.109-Framing, filing and service of the charge.

(1) The public prosecutor shall within fifteen days of the receipt of the police report (Art.37) or the record of a preliminary inquiry (Art.91) frame such charge as he thinks fit, having regard to the police investigation or preliminary inquiry, and shall file it in the court having jurisdiction.

(2) If, before the trail by the High Court, the prosecutor is of opinion upon the record of the preliminary inquiry received by him that the case is one which is to be tried by a subordinate court, he shall, notwithstanding the decision of the committing court, frame such charge as he thinks fit and shall file it in the subordinate court, he shall, notwithstanding the decision of the committing court, frame such charge as he thinks fit and shall file if in the subordinate court having jurisdiction.

(3) Where the preliminary inquiry discloses offences some of which are to be tried by the High Court and some by a subordinate court, the prosecutor shall frame such charges as he thinks fit and shall file them in the High Court which shall have jurisdiction to try all offences thus charged.

(4) A copy of every charge shall be given to the accused free of cost.

Art.110-Charge wrongly filed.

Where the public prosecutor files a charge in a court having no jurisdiction the court shall refuse to accept such charge and shall direct the public prosecutor to file the charge in a court, having jurisdiction and shall so specify in writing in the charge sheet:

Provided that the court may not refuse to accept a charge filed by the public prosecutor under Art. 630 Penal Code by reason only that a court subordinate thereto has jurisdiction to try such charge and on the filing of such charge the court shall have jurisdiction to try such offence ,

Art 111.- Contents and form of the charge.

(1) Every charge shall be dated and signed and shall contain:

(a) The name of the accused; and

(b) The offence with which the accused is charged and its legal and material ingredients; and

(c) The time and place of the offence and, where appropriate, the person against whom or the property in respect of which the offence was committed; and

(d) The law and article of the law against which the offence is said to have been committed.

(2) The charge be in the form set out in the Second Schedule to this Code or shall conform thereto as nearly as may be.

Art.112-Description of circumstances.

Each charge shall describe the offence and its circumstances as to enable the accused to know exactly what charge he has to answer. Such description shall follow as closely as may be the words of the law creating the offence.

Art.113-Where it is doubtful what offence has been committed.

(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed the offence which appears the more probable to have been committed and he may be charged in the alternative with having committed all other offence which the facts which can be proved might constitute.

(2) Where the evidence shows that the accused committed an offence with which he might have been charged in the alternative and the offence is within the jurisdiction of the court, be may be convicted of such offence notwithstanding that he was not charged with it, where such offence is of lesser gravity than the offence charged.

(3) Nothing in this Article shall prevent the court from applying the provisions of Art.6 and 9 Penal Code.

114-Aggravated offence how charged and procedure.

(1) Where an accused person may be charged with an aggravated offence by reason of previous convictions, he shall be charged with the unaggravated offence and the charge shall be filed in the court having jurisdiction to try the aggravated offence.

(2) Where the accused is convicted of the unaggravated offence the public prosecutor may, after conviction and before sentence, prove the previous convictions of the accused which, had they been proved at the trial, would have resulted in his conviction of the aggravated offence. The court, may sentence him as though he had been convicted accordingly.

Art.115-Person charged with an office may be convicted of an attempt or as accessory or instigator.

(1) Where the accused is charged with an offence, be may be convicted of having attempted to commit the offence although the attempt is not separately charged.

(2) Where an accused is charged with an offence as principal, he may be convicted as an instigator or as an accessory, although he was charged as such.

Art.116-More than one charge.

(1) A charge may contain several different counts relating to the same accused and each offence so charged shall be described separately.

(2) All charge may be tried together but where the accused is likely to be embarrassed in his defense, the court shall order the charges to be tried separately.

Art.117-Joinder of charges.

(1) All persons accused of having participated in whatever capacity in the offence or offence even at different time shall be charged and tried together.

(2) Nothing in this Article shall prevent the court from ordering separate trials where separation is required in the interests of justice.

(3) Where several persons have committed different offence connected with the same criminal activity they may where necessary be charged and tried together.

Art.118 Effect of errors.

No error in stating either the offence or the particulars required to be stated on the charge and no omission to state the offence or those particulars shall be regarded as material and no charge containing such error or omissions shall be regarded as invalid unless they related to essential points or the accused was in fact misled by such error or omission or justice is likely to be thereby defeated.

Art.119- Alteration or addition to charge.

(1) Where the accused is brought to trial on a charge containing essential errors or omissions or such errors or omissions that the accused has been or is likely to be misled, the court may at any time before judgment of its own motion or on application order the charge to be altered or added to or a new charge to be framed , as the case may be.

(2) Every such alteration, addition or new charge shall be read and explained to the accused.

(3) The provisions of this Article shall also apply in the case of errors or omissions within the meaning of Art. 118

Art.120-Effect of alteration or addition.

(1) Where a charge is altered or added to or a new charge is framed, the court shall ask the accused to state whether he is ready to be tried on such altered, added or new charge.

(2) Where the accused declares that he is not ready, the court shall consider the reasons he gives, if proceeding immediately with the trial is not likely, in the opinion of the court, to prejudice the accused in his defence the court may proceed with the trial as if the altered, added or new charge had been the original charge.

(3) If proceeding immediately with the trial is likely in the opinion of the court to prejudice the accused in his defiance or the prosecutor in the conduct of the case, an adjournment shall be ordered (Art.94)

Art.121- Recall of witnesses.

Whenever a charge is altered or added to or a new charge is framed after the beginning of the trial, the prosecutor and the accused shall be allowed to recall and examine, with reference to such alteration, addition or new charge, any witnesses who may have been examined and may also call any further evidence which may be material.

Art.122-Withdrawal of charges.

(1) With the permission of the court the public prosecutor may before judgment at any stage of the proceedings withdraw and charge other than a charge under Art.522 (homicide in the first degree) or Art. 637 (aggravated robbery).

(2) Where the public prosecutor informs the court that the withdrawal of a charge is on the instructions of government, the court shall, if it is satisfied that the public prosecutor has been so ordered, grant permission to the public prosecutor to withdraw the charge.

(3) Where no new charge is framed under the provision of Art.119 the accused shall be discharged.

(4) The court shall give reasons for allowing or refusing withdrawal of a charge.

(5) The withdrawal of a charge under the provisions of this Article is no bar to subsequent proceedings.

Chapter 4- The Trial

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