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This is a Bill, not an Act. For current law, see the Acts databases.


CRIMINAL APPEALS BILL 2004

                       Western Australia


          Criminal Appeals Bill 2004

                         CONTENTS


      Part 1 -- Preliminary
1.    Short title                                             2
2.    Commencement                                            2
3.    This Act to be read with Criminal Procedure Act 2004    2
4.    Interpretation                                          2
5.    Appeal against sentence of superior court after
      conviction by lower court, commencement of              3
      Part 2 -- Appeals from courts of
           summary jurisdiction
      Division 1 -- Preliminary
6.    Interpretation                                          4
      Division 2 -- Appeals to a single judge
7.    Right of appeal                                         4
8.    Grounds for appealing                                   5
9.    Leave to appeal required in all cases                   6
10.   Commencing an appeal                                    6
11.   Sentences etc., effect of appeal on                     7
12.   Sentences etc., Supreme Court may suspend etc.          8
13.   Supreme Court may refer appeal to Court of Appeal       9
14.   Supreme Court's powers on an appeal                    10
15.   Conclusion of appeal, consequences                     11
      Division 3 -- Appeals from a single judge to the
             Court of Appeal
16.   Right of appeal to Court of Appeal                     12
17.   Commencing an appeal                                   12
18.   Provisions applicable to appeals to Court of Appeal    12
19.   Court of Appeal's additional powers on an appeal       13


                              332--2                          page i
Criminal Appeals Bill 2004



Contents



           Division 4 -- Costs
   20.     Costs against Attorney General, JPs or police officers   13
   21.     Costs orders, enforcement of                             14
           Part 3 -- Appeals from superior courts
           Division 1 -- Preliminary
   22.     Interpretation                                           15
           Division 2 -- Rights of appeal
   23.     Rights of appeal of offender                             15
   24.     Rights of appeal of prosecutor                           16
   25.     Rights of appeal if acquittal on account of
           unsoundness of mind                                      17
   26.     Separate trial decision, interlocutory appeal against    17
           Division 3 -- Commencing and deciding appeals
   27.     Leave to appeal required in all cases                    19
   28.     Commencing an appeal                                     19
   29.     Sentences etc., Court of Appeal may stay etc.            20
   30.     Appeal against conviction, decision on                   20
   31.     Appeal against sentence etc., decision on                22
   32.     Appeal under s. 25, decision on                          23
   33.     Other appeals by prosecutor, decision on                 26
   34.     New trial etc., procedure if ordered                     27
           Division 4 -- Miscellaneous
   35.     No fees or costs                                         27
           Part 4 -- Provisions applicable to any
                appeal
   36.     Interpretation                                           28
   37.     Application of this Part                                 28
   38.     Multiple appeals, consolidation etc.                     28
   39.     Material to be considered on appeal                      28
   40.     General powers to deal with appeals                      29
   41.     Sentencing or re-sentencing on appeal                    31
   42.     Result of appeal to be given to other court              32
   43.     Party in custody, entitlement to be present at appeal    32
   44.     Appellant in custody, treatment of                       33
   45.     Exhibits                                                 34




page ii
                                             Criminal Appeals Bill 2004



                                                              Contents



      Part 5 -- Referrals of questions of law
           to the Court of Appeal
46.   Referrals by superior courts                               36
47.   Referrals by Attorney General                              36
48.   Referrals, general provisions about                        37
      Part 6 -- Miscellaneous
49.   Sentence may be varied etc. in specific cases              39
50.   Rules of court                                             39
      Defined Terms




                                                                page iii
                           Western Australia


                     LEGISLATIVE ASSEMBLY

              (As amended during consideration in detail)


                Criminal Appeals Bill 2004


                               A Bill for


An Act about appeals in criminal cases and about related matters.



The Parliament of Western Australia enacts as follows:




                                                              page 1
     Criminal Appeals Bill 2004
     Part 1         Preliminary

     s. 1



                              Part 1 -- Preliminary
     1.         Short title
                This Act may be cited as the Criminal Appeals Act 2004.

     2.         Commencement
5               This Act comes into operation on a day fixed by proclamation.

     3.         This Act to be read with Criminal Procedure Act 2004
                This Act is to be read with the Criminal Procedure Act 2004.

     4.         Interpretation
          (1)   If not defined in this Act, words and expressions in this Act
10              have the same definitions as in the Criminal Procedure
                Act 2004 unless the contrary intention appears.
          (2)   In this Act, unless the contrary intention appears --
                "appeal" means an appeal under this Act or an application for
                    leave to appeal under this Act;
15              "appellant" includes an applicant for leave to appeal or for an
                    extension of time within which to appeal or apply for leave
                    to appeal;
                "concluded", in relation to an appeal, means decided, dismissed
                    or discontinued;
20              "Court of Appeal Registrar" has the meaning given by the
                    Supreme Court Act 1935;
                "court of summary jurisdiction" means a court, or a person,
                    that is acting in circumstances in which it is a court of
                    summary jurisdiction by virtue of another written law;
25              "rules of court" means rules of court made by the Supreme
                    Court;
                "superior court" means the Supreme Court or the District
                    Court but not the Court of Appeal;
                "Supreme Court" does not include the Court of Appeal.

     page 2
                                                       Criminal Appeals Bill 2004
                                                       Preliminary         Part 1

                                                                              s. 5



     5.         Appeal against sentence of superior court after conviction
                by lower court, commencement of
          (1)   This section applies if an accused is sentenced for an offence by
                a superior court having been convicted of the offence by a court
5               of summary jurisdiction and committed to the superior court to
                be sentenced for the offence.
          (2)   Any appeal against both the conviction by the court of summary
                jurisdiction and the sentence imposed by the superior court must
                be commenced and conducted under Part 3, despite Part 2.
10        (3)   If in one or more appeals there are appeals against both a
                conviction of an offence by a court of summary jurisdiction and
                the sentence imposed by a superior court for the offence, the
                appeals are to be dealt with together by the Court of Appeal
                under Part 3, despite Part 2.




                                                                           page 3
     Criminal Appeals Bill 2004
     Part 2         Appeals from courts of summary jurisdiction
     Division 1     Preliminary
     s. 6



     Part 2 -- Appeals from courts of summary jurisdiction
                             Division 1 -- Preliminary
     6.         Interpretation
                In this Part, unless the contrary intention appears --
5               "decision", of a court of summary jurisdiction, means any of
                    the following --
                    (a) a judgment entered under the Criminal Procedure
                          Act 2004 section 128(2) or (3);
                    (b) a decision ordering a permanent stay of a
10                        prosecution;
                    (c) a decision to convict an accused of a charge, whether
                          after a plea of guilty or after a trial;
                    (d) a decision to acquit an accused of a charge;
                    (e) a decision to acquit an accused of a charge on
15                        account of unsoundness of mind;
                     (f) a sentence imposed, or order made, as a result of a
                          conviction or acquittal;
                    (g) a refusal to make an order that might be made as a
                          result of a conviction or acquittal;
20                  (h) a decision as to costs;
                "Supreme Court" means the Supreme Court constituted by a
                    single judge sitting in its General Division.

                     Division 2 -- Appeals to a single judge
     7.         Right of appeal
25        (1)   A person who is aggrieved by a decision of a court of summary
                jurisdiction may appeal to the Supreme Court against the
                decision.
          (2)   The Attorney General may appeal to the Supreme Court against
                a decision of a court of summary jurisdiction.

     page 4
                                                       Criminal Appeals Bill 2004
                        Appeals from courts of summary jurisdiction        Part 2
                                         Appeals to a single judge    Division 2
                                                                              s. 8



          (3)   The following decisions of a court of summary jurisdiction
                cannot be the subject of an appeal under this Part --
                  (a) a decision that is declared by an Act to be final or not
                        appealable;
5                 (b) a decision to commit or not to commit an accused for
                        trial or sentence;
                  (c) a decision as to bail.
          (4)   Except as provided by this section, no appeal lies against a
                decision of a court of summary jurisdiction.
10        (5)   Subsections (1), (2) and (4) are subject to any other written law
                and in particular to the Children's Court of Western Australia
                Act 1988 Part 5.
          (6)   This section does not affect the operation of the Bail Act 1982.

     8.         Grounds for appealing
15        (1)   An appeal may be made under this Division on one or more of
                these grounds --
                  (a) that the court of summary jurisdiction --
                           (i) made an error of law or fact, or of both law and
                               fact;
20                        (ii) acted without or in excess of jurisdiction;
                         (iii) imposed a sentence that was inadequate or
                               excessive;
                  (b) that there has been a miscarriage of justice.
          (2)   An appeal may be made under this Division against a decision
25              even if the decision was made after a plea of guilty or an
                admission of the truth of any matter.
          (3)   Despite subsections (1) and (2), no decision of, or proceedings
                before, a court of summary jurisdiction, nor any document in
                such proceedings, shall be held to be bad for want of form.



                                                                           page 5
     Criminal Appeals Bill 2004
     Part 2         Appeals from courts of summary jurisdiction
     Division 2     Appeals to a single judge
     s. 9



           (4)   Without limiting subsection (3), a person cannot appeal against
                 a decision --
                   (a) on the ground that the person had not received a
                         prosecution notice; or
5                  (b) on a ground that relates to any amendment of a
                         prosecution notice,
                 if the person was present at the hearing at which the decision
                 was made and did not then object on that ground.

     9.          Leave to appeal required in all cases
10         (1)   The leave of the Supreme Court is required for each ground of
                 appeal in an appeal under this Division.
           (2)   After an appeal is commenced, the Supreme Court must not
                 give leave to appeal on a ground of appeal unless it is satisfied
                 the ground has a reasonable prospect of succeeding.
15         (3)   Unless the Supreme Court gives leave to appeal on at least one
                 ground of appeal in an appeal, the appeal is to be taken to have
                 been dismissed.
           (4)   The Supreme Court may decide whether or not to give leave to
                 appeal --
20                 (a) with or without written or oral submissions from the
                        parties to the appeal;
                   (b) before or at the hearing of, or when giving judgment on,
                        the appeal.
           (5)   As soon as practicable after the Supreme Court gives leave to
25               appeal against a decision, it must notify the court of summary
                 jurisdiction that made the decision.

     10.         Commencing an appeal
           (1)   An appeal under this Division must be commenced and
                 conducted in accordance with this Division and rules of court.



     page 6
                                                        Criminal Appeals Bill 2004
                         Appeals from courts of summary jurisdiction        Part 2
                                          Appeals to a single judge    Division 2
                                                                              s. 11



           (2)   An appeal under this Division must be commenced by lodging
                 with the Supreme Court an application for leave to appeal that
                 sets out the grounds of the appeal.
           (3)   An appeal against a decision cannot be commenced later than
5                28 days after the date of the decision unless the Supreme Court
                 orders otherwise.
           (4)   If the date on which a person is sentenced for an offence is not
                 the date on which the person is convicted of the offence, the
                 time in subsection (3) for an appeal against either the conviction
10               or the sentence or both runs from the date of sentencing.
           (5)   On commencing an appeal, the appellant must serve a copy of
                 the application for leave to appeal on --
                   (a) the court of summary jurisdiction; and
                   (b) the other party or other parties to the proceedings before
15                       the court of summary jurisdiction.
           (6)   The Supreme Court may at any time order the appellant to serve
                 a copy of the application for leave to appeal on any other person
                 the court thinks fit.
           (7)   As soon as practicable after it is served under subsection (5), a
20               court of summary jurisdiction must give the exhibits in the case
                 to the Supreme Court.

     11.         Sentences etc., effect of appeal on
           (1)   This section applies when the Supreme Court gives leave to
                 appeal against a decision unless and to the extent that an order
25               made under section 12 provides otherwise.
           (2)   After leave to appeal against a decision is given and until the
                 appeal is concluded, no warrant or order to enforce the decision
                 shall be issued, and no action to enforce the decision shall be
                 taken, except to enforce a sentence or order referred to in
30               subsection (6).



                                                                            page 7
     Criminal Appeals Bill 2004
     Part 2         Appeals from courts of summary jurisdiction
     Division 2     Appeals to a single judge
     s. 12



           (3)   Any disqualification from holding or obtaining a licence to
                 drive a vehicle under the Road Traffic Act 1974, or under the
                 Sentencing Act 1995 Part 15, in respect of a conviction that is
                 the subject of an appeal is suspended until the appeal is
5                concluded.
           (4)   Any period during which the disqualification is so suspended
                 must not be taken into account in calculating the period of the
                 disqualification.
           (5)   Subject to subsection (6) and the Fines, Penalties and
10               Infringement Notices Enforcement Act 1994 section 101B, any
                 sentence imposed, or any other order made, under the
                 Sentencing Act 1995, the Young Offenders Act 1994, or any
                 other written law, is suspended until the appeal is concluded.
           (6)   Subsection (5) does not apply to --
15                (a) a sentence of imprisonment, whether or not it is
                        suspended under the Sentencing Act 1995 Part 11 or is
                        indefinite imprisonment imposed under Part 14 of that
                        Act;
                  (b) a sentence of detention under the Young Offenders
20                      Act 1994; and
                  (c) an order of forfeiture.

     12.         Sentences etc., Supreme Court may suspend etc.
           (1)   At any time after an appeal under this Division is commenced
                 against a decision of a court of summary jurisdiction, the
25               Supreme Court may make any order it thinks fit that suspends or
                 continues in effect until the appeal is concluded --
                   (a) the decision;
                   (b) any sentence imposed, or order made, by the court of
                         summary jurisdiction as a result of the decision;
30                 (c) any statutory consequence of the decision.
           (2)   The Supreme Court may amend or cancel an order made under
                 this section at any time.

     page 8
                                                        Criminal Appeals Bill 2004
                         Appeals from courts of summary jurisdiction        Part 2
                                          Appeals to a single judge    Division 2
                                                                              s. 13



           (3)   An order may be made under this section before or after the
                 Supreme Court decides whether or not to give leave to appeal.
           (4)   If the Supreme Court makes, amends or cancels any such order,
                 it must give a copy of the order --
5                   (a) to the court of summary jurisdiction concerned; and
                    (b) if the order relates to the statutory consequence of the
                         decision being appealed, to any person who under a
                         written law is required to register the statutory
                         consequence.
10         (5)   Despite subsections (1) and (2), if an appellant or respondent is
                 serving a sentence of imprisonment --
                   (a) the sentence must not be suspended unless he or she is
                         granted bail under the Bail Act 1982; and
                   (b) he or she must not be released from custody until he or
15                       she becomes entitled to be released under that Act.
           (6)   If an appeal is commenced against a decision involving or
                 giving rise to the imposition of a fine (as defined in the Fines,
                 Penalties and Infringement Notices Enforcement Act 1994
                 section 28(1)), an order cannot be made under this section.
20         (7)   An order made under this section has effect despite section 11.

     13.         Supreme Court may refer appeal to Court of Appeal
           (1)   An appeal under this Division must be dealt with by the
                 Supreme Court constituted by a single judge sitting in its
                 General Division, unless an order is made under subsection (2).
25         (2)   At any time before an appeal is concluded, the Supreme Court,
                 on its own initiative or on the application of a party may order
                 that the appeal be dealt with by the Court of Appeal.
           (3)   If an order is made under subsection (2), this Division, with any
                 necessary changes, applies as if --
30                 (a) the appeal had been made to the Court of Appeal; and


                                                                              page 9
     Criminal Appeals Bill 2004
     Part 2         Appeals from courts of summary jurisdiction
     Division 2     Appeals to a single judge
     s. 14



                  (b)   unless the context requires otherwise, references to the
                        Supreme Court were to the Court of Appeal.

     14.         Supreme Court's powers on an appeal
           (1)   In deciding an appeal, the Supreme Court may do one or more
5                of the following --
                   (a) dismiss the appeal;
                   (b) allow the appeal;
                   (c) set aside or vary the decision of the court of summary
                         jurisdiction and sentence imposed, order made or thing
10                       done as a result of the decision;
                   (d) substitute a decision that should have been made by the
                         court of summary jurisdiction;
                   (e) order the case to be dealt with again by the court of
                         summary jurisdiction, with or without orders to that
15                       court --
                            (i) as to how or by whom it is to be constituted;
                           (ii) as to how it must deal with the case;
                    (f) make any order under the Magistrates Court Act 2004
                         section 36(6);
20                 (g) if the appeal is against a decision to acquit an accused of
                         a charge on account of unsoundness of mind or to make
                         or refuse to make an order under the Criminal Law
                         (Mentally Impaired Accused) Act 1996, exercise any
                         power that the Court of Appeal may exercise under
25                       section 32;
                   (h) make an order as to the costs of the appeal and the costs
                         of the proceedings in the court of summary jurisdiction;
                    (i) make any other order it thinks fit.
           (2)   Despite subsection (1)(b), even if a ground of appeal might be
30               decided in favour of the appellant, the Supreme Court may
                 dismiss the appeal if it considers that no substantial miscarriage
                 of justice has occurred.

     page 10
                                                        Criminal Appeals Bill 2004
                         Appeals from courts of summary jurisdiction        Part 2
                                          Appeals to a single judge    Division 2
                                                                              s. 15



           (3)   The Supreme Court is not required to set aside or vary a
                 decision of a court of summary jurisdiction because the court
                 omitted to make any necessary finding of fact if the facts or
                 evidence --
5                  (a) in substance support the decision; or
                   (b) justify the finding,
                 and the Supreme Court, under subsection (1), may instead either
                 vary the decision or substitute another decision for it.
           (4)   On an appeal against a conviction, the Supreme Court may vary
10               a decision of a court of summary jurisdiction or substitute
                 another decision for it if there is some excess which may,
                 consistently with the merits of the case, be corrected.
           (5)   On an appeal against a sentence, the Supreme Court may have
                 regard to any relevant matter that has occurred between when
15               the offender was convicted and when the appeal was heard.

     15.         Conclusion of appeal, consequences
           (1)   The decision of the Supreme Court, or the decision of the court
                 of summary jurisdiction as varied by the Supreme Court, other
                 than a decision under section 13(2) or 14(1)(e) or (f), has effect
20               as if it were the decision of the court of summary jurisdiction,
                 and may be enforced accordingly.
           (2)   The court of summary jurisdiction may take any steps that are
                 necessary to give effect to any decision of the Supreme Court of
                 a kind mentioned in section 14(1)(e).
25         (3)   When an appeal is concluded, any warrant or other process that
                 was suspended, and any thing the doing or operation of which
                 was suspended under section 11, or under an order made under
                 section 12, again has effect, subject to any order of the Supreme
                 Court.
30         (4)   Subsection (3) does not limit the operation of section 41(8).



                                                                            page 11
     Criminal Appeals Bill 2004
     Part 2         Appeals from courts of summary jurisdiction
     Division 3     Appeals from a single judge to the Court of Appeal
     s. 16



                 Division 3 -- Appeals from a single judge to the
                               Court of Appeal
     16.         Right of appeal to Court of Appeal
           (1)   A person whose application to extend the time to commence an
5                appeal under Division 2 is refused by a single judge of the
                 Supreme Court sitting in its General Division may appeal to the
                 Court of Appeal against the decision.
           (2)   A party to an appeal under Division 2 who is aggrieved by a
                 decision made in the appeal by a single judge of the Supreme
10               Court sitting in its General Division that --
                   (a) refuses leave to appeal; or
                   (b) dismisses or decides an appeal,
                 may appeal to the Court of Appeal against the decision.
           (3)   The Attorney General may appeal to the Court of Appeal
15               against a decision referred to in subsection (1) or (2).

     17.         Commencing an appeal
           (1)   An appeal under this Division must be commenced and
                 conducted in accordance with this Division and rules of court.
           (2)   An appeal under this Division must be commenced by lodging
20               with the Court of Appeal an application for leave to appeal that
                 sets out the grounds of the appeal.
           (3)   An appeal under this Division against a decision of a single
                 judge cannot be commenced later than 21 days after the date of
                 the decision unless the Court of Appeal orders otherwise.

25   18.         Provisions applicable to appeals to Court of Appeal
                 Subject to this Division, Division 2 (other than sections 7, 8, 10
                 and 13), with any necessary changes, applies to and in respect of
                 an appeal under this Division as if --
                   (a) the appeal were an appeal under Division 2; and

     page 12
                                                        Criminal Appeals Bill 2004
                         Appeals from courts of summary jurisdiction        Part 2
                                                              Costs    Division 4
                                                                              s. 19



                  (b)   unless the context requires otherwise, references in
                        Division 2 --
                          (i) to a court of summary jurisdiction were to the
                                Supreme Court sitting in its General Division;
5                               and
                         (ii) to the Supreme Court were to the Court of
                                Appeal.

     19.         Court of Appeal's additional powers on an appeal
           (1)   This section does not limit the operation of section 18.
10         (2)   In deciding an appeal under this Division, the Court of Appeal
                 may, in addition to exercising any of the powers in section 14,
                 do one or more of the following --
                   (a) order the case to be dealt with again by the court of
                         summary jurisdiction, with or without orders to that
15                       court --
                           (i) as to how or by whom it is to be constituted;
                          (ii) as to how it must deal with the case;
                   (b) make an order as to the costs of the appeal and the costs
                         of the proceedings in the court of summary jurisdiction.

20                                Division 4 -- Costs
     20.         Costs against Attorney General, JPs or police officers
           (1)   If the Attorney General is an appellant in proceedings under this
                 Part, the Supreme Court must not order the Attorney General to
                 pay the costs of any of the respondents, but the Supreme Court
25               may order that a respondent be paid costs, and in such a case --
                   (a) a registrar of the Supreme Court must give that
                         respondent a certificate sealed with the seal of the
                         Supreme Court showing the amount of the costs; and
                   (b) the person may recover that amount in a court of
30                       competent jurisdiction as a debt due by the State.


                                                                            page 13
     Criminal Appeals Bill 2004
     Part 2         Appeals from courts of summary jurisdiction
     Division 4     Costs
     s. 21



           (2)   If a JP or a police officer, acting in an official capacity, is a
                 party to proceedings under this Part, the Supreme Court must
                 not order that the JP or officer is to pay any costs.
           (3)   Despite subsection (2), if a police officer is an appellant in an
5                appeal under this Part and the decision appealed against --
                   (a) is confirmed; or
                   (b) if not confirmed, has in the opinion of the Supreme
                        Court involved a point of law of exceptional public
                        importance,
10               the Supreme Court may order that a respondent be paid costs,
                 and in such a case --
                   (c) the Supreme Court must give that respondent a
                         certificate sealed with the seal of the Supreme Court
                         showing the amount of the costs; and
15                 (d) the person may recover that amount in a court of
                         competent jurisdiction as a debt due by the State.

     21.         Costs orders, enforcement of
           (1)   This section applies if under this Part the Supreme Court orders
                 a person to pay any costs.
20         (2)   If the money is not paid within 28 days after the date of the
                 order, the person to whom the money is to be paid may enforce
                 the order by lodging a certified copy of it, and an affidavit
                 stating to what extent it has not been complied with, with a
                 court of competent jurisdiction.
25         (3)   When lodged, the order is to be taken to be a judgment of the
                 court and may be enforced accordingly.
           (4)   This section does not prevent the recovery of the money by
                 means expressly provided by a written law.




     page 14
                                                        Criminal Appeals Bill 2004
                                        Appeals from superior courts        Part 3
                                                        Preliminary    Division 1
                                                                              s. 22



                  Part 3 -- Appeals from superior courts
                              Division 1 -- Preliminary
     22.         Interpretation
                 In this Part --
5                "offender" means a person who has been convicted of an
                      offence;
                 "trial court", in relation to an appeal under this Part, means the
                      superior court that dealt with the case that is the subject of
                      the appeal.

10                          Division 2 -- Rights of appeal
     23.         Rights of appeal of offender
           (1)   An offender convicted of an offence on indictment may appeal
                 to the Court of Appeal against any or all of the following
                 decisions --
15                 (a) the conviction;
                   (b) the sentence imposed on the offender or any order made
                         as a result of the conviction;
                   (c) a refusal to make an order that might be made as a result
                         of the conviction.
20         (2)   An offender convicted by a court of summary jurisdiction and
                 sentenced by a superior court may appeal to the Court of Appeal
                 against any or all of the following decisions --
                   (a) the conviction;
                   (b) the sentence imposed on the person or any order made
25                       as a result of the conviction;
                   (c) a refusal to make an order that might be made as a result
                         of the conviction.




                                                                            page 15
     Criminal Appeals Bill 2004
     Part 3         Appeals from superior courts
     Division 2     Rights of appeal
     s. 24



     24.         Rights of appeal of prosecutor
           (1)   The prosecutor may appeal to the Court of Appeal against any
                 one or more of the following decisions by a judge of a superior
                 court in relation to a charge of an indictable offence --
5                  (a) the sentence imposed on a person convicted of the
                         charge or any order made as a result of the conviction;
                   (b) the sentence imposed on a person convicted by a court
                         of summary jurisdiction of the charge and committed for
                         sentence or any order made as a result of the conviction;
10                 (c) a refusal to make an order that might be made as a result
                         of a conviction.
           (2)   The prosecutor may also appeal to the Court of Appeal against
                 any one or more of the following decisions by a judge of a
                 superior court in relation to a charge of an indictable offence --
15                 (a) a decision refusing to consent to the discontinuance of
                        the prosecution of the charge;
                   (b) a judgment entered under the Criminal Procedure
                        Act 2004 section 128(2) or (3);
                   (c) a decision ordering a permanent stay of proceedings on
20                      the charge;
                   (d) a decision ordering an adjournment of proceedings on
                        the charge;
                   (e) a judgment of acquittal (other than a judgment of
                        acquittal on account of unsoundness of mind) --
25                         (i) entered after a decision by the judge that the
                                 accused has no case to answer on the charge; or
                          (ii) entered in a trial by the judge alone;
                    (f) any judgment entered as a result of any of the above
                        decisions;
30                 (g) any order made as a result of any of the above decisions
                        or judgments.



     page 16
                                                        Criminal Appeals Bill 2004
                                       Appeals from superior courts         Part 3
                                                   Rights of appeal    Division 2
                                                                              s. 25



     25.         Rights of appeal if acquittal on account of unsoundness of
                 mind
           (1)   This section applies if an accused is acquitted of a charge in an
                 indictment on account of unsoundness of mind.
5          (2)   The accused may appeal to the Court of Appeal against any or
                 all of the following decisions --
                   (a) the acquittal;
                   (b) any order made under the Criminal Law (Mentally
                          Impaired Accused) Act 1996 as a result of the acquittal.
10         (3)   The prosecutor may appeal to the Court of Appeal against any
                 or all of the following decisions --
                   (a) the acquittal if it was entered after a finding made by a
                          judge under the Criminal Procedure Act 2004 section 93
                          or in a trial by judge alone;
15                 (b) any order made under the Criminal Law (Mentally
                          Impaired Accused) Act 1996 as a result of the acquittal;
                   (c) any refusal to make an order under the Criminal Law
                          (Mentally Impaired Accused) Act 1996 as a result of the
                          acquittal.

20   26.         Separate trial decision, interlocutory appeal against
           (1)   If an accused is charged in one indictment with 2 or more
                 offences --
                   (a) the prosecutor may appeal to the Court of Appeal
                         against any order made by a judge of a superior court
25                       that there be a separate trial of any of the charges; and
                   (b) the accused may appeal to the Court of Appeal against a
                         refusal by a judge of a superior court to order that there
                         be a separate trial of any of the charges.
           (2)   If an accused is tried at one trial with 2 or more offences
30               charged in one indictment and is convicted of any of those
                 offences, an appeal by the accused under this Part against that


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     Criminal Appeals Bill 2004
     Part 3         Appeals from superior courts
     Division 2     Rights of appeal
     s. 26



               conviction on any ground that relates to the joinder of the
               charges in the indictment cannot be allowed on that ground if
               the accused has already appealed under subsection (1)(b),
               except on the basis of any relevant matter that emerged at any
5              time after the decision that was the subject of that appeal.
        (3)    If 2 or more accused are charged on indictment with an
               offence --
                 (a) the prosecutor may appeal to the Court of Appeal
                       against any order made by a judge of a superior court
10                     that there be a separate trial of any of the accused; and
                 (b) any accused may appeal to the Court of Appeal against a
                       refusal by a judge of a superior court to order that there
                       be a separate trial of any of the accused.
        (4)    If an accused is tried with one or more other accused in one trial
15             and is convicted of any offence, an appeal by the accused under
               this Part against that conviction on any ground that relates to the
               joinder of the accused in the indictment cannot be allowed on
               that ground if the accused has already appealed under
               subsection (3)(b), except on the basis of any relevant matter that
20             emerged at any time after the decision that was the subject of
               that appeal.
        (5)    An appeal under this section against a decision must be
               commenced within 7 days after the date of the decision and
               before the trial of the accused starts.
25      (6)    If an appeal under this section is commenced after the trial of
               the accused concerned has started, it must be dismissed.
        (7)    On an appeal under this section against an order or a refusal to
               make an order, the Court of Appeal may confirm the order or
               refusal, or set it aside and make any order that could have been
30             made on the application for a separate trial.




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                                      Appeals from superior courts         Part 3
                                  Commencing and deciding appeals     Division 3
                                                                             s. 27



                 Division 3 -- Commencing and deciding appeals
     27.         Leave to appeal required in all cases
           (1)   The leave of the Court of Appeal is required for each ground of
                 appeal in an appeal under this Part.
5          (2)   After an appeal is commenced, the Court of Appeal must not
                 give leave to appeal on a ground of appeal unless it is satisfied
                 the ground has a reasonable prospect of succeeding.
           (3)   Unless the Court of Appeal gives leave to appeal on at least one
                 ground of appeal in an appeal, the appeal is to be taken to have
10               been dismissed.
           (4)   The Court of Appeal may decide whether or not to give leave to
                 appeal --
                   (a) with or without written or oral submissions from the
                        parties to the appeal;
15                 (b) before or at the hearing of, or when giving judgment on,
                        the appeal.

     28.         Commencing an appeal
           (1)   An appeal under this Part must be commenced and conducted in
                 accordance with this Part and rules of court.
20         (2)   An appeal under this Part must be commenced by lodging with
                 the Court of Appeal an application for leave to appeal that sets
                 out the grounds of the appeal.
           (3)   An appeal under this Part against a decision or judgment cannot
                 be commenced later than 21 days after the date of the decision
25               or judgment unless the Court of Appeal orders otherwise.
           (4)   If the date on which a person is sentenced for an offence is not
                 the date on which the person is convicted of the offence, the
                 time in subsection (3) for an appeal against either the conviction
                 or the sentence or both runs from the date of sentencing.



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     Criminal Appeals Bill 2004
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     Division 3     Commencing and deciding appeals
     s. 29



           (5)   On commencing an appeal, the appellant must serve a copy of
                 the application for leave to appeal on --
                   (a) the District Court if it made the decision that is the
                         subject of the appeal; and
5                  (b) the other party or other parties to the proceedings before
                         the trial court.
           (6)   The Court of Appeal may at any time order the appellant to
                 serve a copy of the application for leave to appeal on any other
                 person the court thinks fit.
10         (7)   As soon as practicable after it is served under subsection (5), the
                 District Court must give the exhibits in the case to the Court of
                 Appeal.

     29.         Sentences etc., Court of Appeal may stay etc.
                 At any time after an appeal is commenced under this Part and
15               before it is concluded, the Court of Appeal may --
                   (a) make any order that a superior court can make under the
                         Criminal Procedure Act 2004 section 121; or
                   (b) amend or cancel any such order that has been made,
                         whether by a superior court or the Court of Appeal.

20   30.         Appeal against conviction, decision on
           (1)   This section applies in the case of an appeal against a conviction
                 by an offender.
           (2)   Unless under subsection (3) the Court of Appeal allows the
                 appeal, it must dismiss the appeal.
25         (3)   The Court of Appeal must allow the appeal if in its opinion --
                  (a) the verdict of guilty on which the conviction is based
                       should be set aside because, having regard to the
                       evidence, it is unreasonable or cannot be supported;
                  (b) the conviction should be set aside because of a wrong
30                     decision on a question of law by the judge; or
                  (c) there was a miscarriage of justice.

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                                                 Criminal Appeals Bill 2004
                                Appeals from superior courts         Part 3
                            Commencing and deciding appeals     Division 3
                                                                       s. 30



     (4)   Despite subsection (3), even if a ground of appeal might be
           decided in favour of the offender, the Court of Appeal may
           dismiss the appeal if it considers that no substantial miscarriage
           of justice has occurred.
5    (5)   If the Court of Appeal allows the appeal, it must set aside the
           conviction of the offence ("offence A") and must --
             (a) order a trial or a new trial;
             (b) enter a judgment of acquittal of offence A;
             (c) if --
10                    (i) the offender could have been found guilty of
                           some other offence ("offence B") instead of
                           offence A; and
                     (ii) the court is satisfied that the jury must have been
                           satisfied or, in a trial by a judge alone, that the
15                         judge must have been satisfied of facts that prove
                           the offender was guilty of offence B,
                   enter a judgment of conviction for offence B and impose
                   a sentence for offence B that is no more severe than the
                   sentence that was imposed for offence A;
20           (d) if the court is satisfied that the offender should have
                   been found not guilty of offence A on account of
                   unsoundness of mind -- enter a judgment of acquittal of
                   offence A on account of unsoundness of mind and deal
                   with the offender under the Criminal Law (Mentally
25                 Impaired Accused) Act 1996; or
             (e) if the offender could have been found guilty of some
                   other offence ("offence B") instead of offence A and the
                   court is satisfied --
                      (i) that the jury must have been satisfied or, in a trial
30                         by a judge alone, that the judge must have been
                           satisfied of facts that prove the offender did the
                           acts or made the omissions that constitute
                           offence B; and


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     Criminal Appeals Bill 2004
     Part 3         Appeals from superior courts
     Division 3     Commencing and deciding appeals
     s. 31



                          (ii)  that the offender should have been found not
                                guilty of offence B on account of unsoundness of
                                mind,
                        enter a judgment of acquittal of offence B on account of
5                       unsoundness of mind and deal with the offender under
                        the Criminal Law (Mentally Impaired Accused)
                        Act 1996.
           (6)   If the Court of Appeal enters a judgment of acquittal of
                 offence A or enters a judgment of conviction of offence B, it
10               may vary any sentence --
                   (a) that was imposed for an offence other than offence A at
                         or after the time when the offender was sentenced for
                         offence A; and
                   (b) that took into account the sentence for offence A.

15   31.         Appeal against sentence etc., decision on
           (1)   This section applies in the case of an appeal commenced by an
                 offender under section 23, or by a prosecutor under
                 section 24(1), against --
                   (a) the sentence imposed or any order made as a result of --
20                         (i) a conviction on indictment; or
                          (ii) a conviction by a court of summary jurisdiction
                                 in respect of which the offender was committed
                                 for sentence;
                   (b) a refusal by a superior court to make an order that might
25                       be made as a result of such a conviction.
           (2)   In deciding the appeal, the Court of Appeal may have regard to
                 any relevant matter that has occurred between when the
                 offender was convicted and when the appeal was heard.
           (3)   Unless under subsection (4) the Court of Appeal allows the
30               appeal, it must dismiss the appeal.




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                                      Appeals from superior courts         Part 3
                                  Commencing and deciding appeals     Division 3
                                                                             s. 32



           (4)   The Court of Appeal may allow the appeal if, in its opinion --
                  (a) in the case of an appeal referred to in subsection (1)(a), a
                       different sentence should have been imposed; or
                  (b) in the case of an appeal referred to in subsection (1)(b),
5                      an order should have been made.
           (5)   If the Court of Appeal allows an appeal referred to in
                 subsection (1)(a), it must set aside the sentence and --
                   (a) may instead impose a new sentence that is either more
                         or less severe; or
10                 (b) may send the charge back to the court that imposed the
                         sentence to be dealt with further.
           (6)   If the Court of Appeal allows an appeal referred to in
                 subsection (1)(b), it --
                   (a) may make any order that should have been made; or
15                 (b) may send the charge back to the court that refused to
                         make the order to be dealt with further.

     32.         Appeal under s. 25, decision on
           (1)   This section applies in the case of an appeal commenced under
                 section 25 in relation to a charge of which an accused has been
20               acquitted on account of unsoundness of mind under The
                 Criminal Code section 27.
           (2)   An appeal against an acquittal of an offence ("offence A") on
                 account of unsoundness of mind is to be dealt with as if the
                 appeal were against --
25                 (a) a finding that the accused did the acts or made the
                        omissions that constitute the offence (the "factual
                        finding");
                   (b) a finding that the accused was not criminally responsible
                        for those acts or omissions on account of unsoundness
30                      of mind (the "section 27 finding"); or
                   (c) both the factual finding and the section 27 finding,
                 as the case requires.

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     Criminal Appeals Bill 2004
     Part 3         Appeals from superior courts
     Division 3     Commencing and deciding appeals
     s. 32



        (3)    Unless under subsection (4) the Court of Appeal allows an
               appeal referred to in subsection (2), it must dismiss the appeal.
        (4)    In an appeal referred to in subsection (2), the Court of Appeal
               may allow the appeal against the factual finding or against the
5              section 27 finding if in its opinion --
                 (a) the finding should be set aside because, having regard to
                       the evidence, it is unreasonable or cannot be supported;
                 (b) the finding should be set aside because of a wrong
                       decision on a question of law by the judge; or
10               (c) there was a miscarriage of justice.
        (5)    Despite subsection (4), even if a ground of appeal might be
               decided in favour of the appellant, the Court of Appeal may
               dismiss an appeal if it considers that no substantial miscarriage
               of justice has occurred.
15      (6)    If both the appeal against the factual finding and the appeal
               against the section 27 finding are allowed, the Court of Appeal
               must set aside the acquittal of offence A on account of
               unsoundness of mind and must --
                 (a) order a trial or a new trial;
20               (b) enter a judgment of acquittal (other than on account of
                       unsoundness of mind) of offence A; or
                 (c) if --
                          (i) the offender could have been found guilty of
                               some other offence ("offence B") instead of
25                             offence A; and
                         (ii) the court is satisfied that the jury must have been
                               satisfied or, in a trial by a judge alone, that the
                               judge must have been satisfied of facts that prove
                               the offender was guilty of offence B,
30                     enter a judgment of conviction for offence B and deal
                       with the accused accordingly.



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                                                 Criminal Appeals Bill 2004
                                Appeals from superior courts         Part 3
                            Commencing and deciding appeals     Division 3
                                                                       s. 32



     (7)   If the appeal against the factual finding is allowed and the
           appeal against the section 27 finding is dismissed, the Court of
           Appeal must set aside the acquittal of offence A on account of
           unsoundness of mind and must --
5            (a) order a trial or a new trial;
             (b) enter a judgment of acquittal (other than on account of
                    unsoundness of mind) of offence A; or
             (c) if --
                       (i) the offender could have been found guilty of
10                          some other offence ("offence B") instead of
                            offence A; and
                      (ii) the court is satisfied that the jury must have been
                            satisfied or, in a trial by a judge alone, that the
                            judge must have been satisfied of facts that prove
15                          the offender was guilty of offence B,
                    enter a judgment of acquittal of offence B on account of
                    unsoundness of mind and deal with the offender under
                    the Criminal Law (Mentally Impaired Accused)
                    Act 1996.
20   (8)   If the appeal against the factual finding is dismissed and the
           appeal against the section 27 finding is allowed, the Court of
           Appeal must set aside the acquittal of offence A on account of
           unsoundness of mind and must --
             (a) if it is satisfied that, but for the section 27 finding, the
25                  accused would have been found guilty of --
                      (i) offence A; or
                     (ii) some other offence of which the accused might
                            have been convicted instead of offence A,
                    enter a judgment of conviction for the offence concerned
30                  and deal with the accused accordingly; or
             (b) otherwise, order a trial or a new trial.




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     Criminal Appeals Bill 2004
     Part 3         Appeals from superior courts
     Division 3     Commencing and deciding appeals
     s. 33



           (9)   In an appeal against an order made, or a refusal to make an
                 order, under the Criminal Law (Mentally Impaired Accused)
                 Act 1996 as a result of an acquittal on account of unsoundness
                 of mind, section 31, with any necessary changes, applies as if
5                the order were a sentence or the refusal were a refusal to make
                 an order that might be made as a result of a conviction, as the
                 case requires.

     33.         Other appeals by prosecutor, decision on
           (1)   This section applies in the case of an appeal by a prosecutor
10               against any decision referred to in section 24(2) in relation to an
                 indictable charge.
           (2)   On the appeal the Court of Appeal --
                  (a) may affirm, vary or set aside the decision and any
                        judgment entered or order made as a result of the
15                      decision;
                  (b) may enter any judgment, make any order, exercise any
                        power (including a power to amend the charge), and
                        direct any step to be taken, which should have been
                        given, made, exercised or taken in the first instance; and
20                (c) if it sets aside a decision, may order a trial or a new trial,
                        as the case requires.
           (3)   If the Court of Appeal sets aside a judgment entered under the
                 Criminal Procedure Act 2004 section 128(2) after the accused
                 was found guilty of an offence but before the accused was
25               convicted of it, the court must --
                   (a) enter a judgment of conviction of the offence against the
                         accused; and
                   (b) order the accused to appear to receive judgment and be
                         dealt with according to law by the Court of Appeal or
30                       the trial court, as the Court of Appeal decides.
           (4)   If an order is made under subsection (3), the Court of Appeal
                 Registrar may issue a warrant to have the accused arrested and
                 brought before the Court of Appeal or the trial court, as the case
                 requires, as soon as practicable.

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                                                         Criminal Appeals Bill 2004
                                        Appeals from superior courts         Part 3
                                                      Miscellaneous     Division 4
                                                                               s. 34



     34.         New trial etc., procedure if ordered
           (1)   If as a result of a decision by the Court of Appeal --
                  (a)    a trial or a new trial is required;
                  (b)    a person is to be required to plead to a charge; or
5                 (c)    an issue needs to be tried,
                 in the trial court the Court of Appeal may fix the time and place
                 for the parties to appear in the trial court and give any directions
                 about it that are necessary.
           (2)   For the purposes of any such appearance, the Court of Appeal
10               Registrar may issue a warrant to have the person who is to be
                 tried or required to plead arrested and brought before the trial
                 court as soon as practicable.

                             Division 4 -- Miscellaneous
     35.         No fees or costs
15         (1)   A party to an appeal under this Part must not be charged a fee
                 by a court for or in respect of any act or proceeding that relates
                 to the appeal or its commencement.
           (2)   The Court of Appeal cannot order a party to an appeal under
                 this Part to pay another party's costs of or relating to the appeal.




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     Part 4         Provisions applicable to any appeal

     s. 36



                 Part 4 -- Provisions applicable to any appeal
     36.          Interpretation
                  In this Part, unless the contrary intention appears --
                  "appeal court", in relation to an appeal, means the division of
5                      the Supreme Court that has jurisdiction to hear the appeal;
                  "lower court", in relation to an appeal, means the court that
                       made the decision that is the subject of the appeal.

     37.          Application of this Part
                  This Part applies to any appeal under this Act.

10   38.          Multiple appeals, consolidation etc.
           (1)    An appellant may appeal against 2 or more decisions made at
                  the same hearing and in such a case the appeals must be heard
                  and decided together unless and to the extent that the appeal
                  court orders otherwise.
15         (2)    If more than one appeal against a decision is made, the appeal
                  court may hear and decide 2 or more of them at the same time.
           (3)    An appeal court may hear and decide 2 or more appeals, each of
                  which is against a different decision, at the same time if it is in
                  the interests of justice to do so.

20   39.          Material to be considered on appeal
           (1)    An appeal court must decide an appeal on the evidence and
                  material that were before the lower court.
           (2)    An appeal court may ascertain what evidence and material was
                  before the lower court in any way it considers sufficient.
25         (3)    Subsection (1) does not affect the power of an appeal court in
                  section 40 to admit evidence.
           (4)    Subsection (1) does not prevent an appeal court from
                  considering any evidence that the lower court refused to admit.

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                                  Provisions applicable to any appeal          Part 4

                                                                                 s. 40



     40.         General powers to deal with appeals
           (1)   For the purposes of dealing with an appeal, an appeal court may
                 do any or all of the following --
                   (a) order the production of any record or thing, whether or
5                        not an exhibit, that is or may be relevant to the appeal;
                  (b) order a witness who would have been compellable at the
                         trial in the lower court, whether or not called at the trial,
                         to attend and be examined before the appeal court;
                   (c) if a person was a compellable witness, or would have
10                       been a compellable witness if called, at the trial in the
                         lower court --
                            (i) order the person to attend and be examined in
                                  accordance with rules of court or the directions
                                  of the appeal court before a person appointed by
15                                it under subsection (2); and
                           (ii) order the evidence of the person to be recorded
                                  and the recording to be admitted as evidence in
                                  the court;
                  (d) subject to the Evidence Act 1906 section 9, admit the
20                       evidence of a witness, including a convicted appellant,
                         who is a competent but not compellable witness;
                   (e) admit any other evidence;
                   (f) if a question in the appeal involves a lengthy
                         examination of records, or a scientific or local
25                       investigation, that the court considers cannot be done
                         conveniently before the court --
                            (i) appoint a special commissioner to inquire into
                                  and report on the question; and
                           (ii) act on the report so far as the court thinks fit;
30                (g) appoint a person with special expert knowledge to act as
                         an assessor to the court if it considers that the
                         knowledge is required to properly decide the appeal;



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     Part 4         Provisions applicable to any appeal

     s. 40



                (h)    require the person or persons who constituted the lower
                       court to supply a report about the decision or the case in
                       which it was made or any aspect of either;
                 (i)   order a party to give particulars to support a ground of
5                      appeal;
                 (j)   if there are inadequate particulars to support a ground of
                       appeal, strike it out without deciding it;
                (k)    amend or add a ground of appeal;
                 (l)   exercise any power that the Supreme Court may exercise
10                     in a civil case;
                (m)    issue any warrant or document, and make any order, that
                       is necessary to give effect to its decision on the appeal
                       or that may be necessary as a result of the
                       discontinuance or dismissal of the appeal;
15              (n)    issue any warrant or other document for the purpose of
                       enforcing an order or sentence of the court.
        (2)    For the purposes of subsection (1)(c)(i) --
                (a) in an appeal under Part 2 a single judge may appoint a
                       magistrate, JP or some other officer or person to conduct
20                     the examination;
                (b) in an appeal under Part 3 the Court of Appeal may
                       appoint a judge of appeal, Supreme Court Judge, District
                       Court Judge, magistrate, JP or some other officer or
                       person to conduct the examination.
25      (3)    If a person is appointed as a special commissioner or assessor,
               the reasonable fees of and expenses incurred by the person in
               performing his or her functions are to be fixed by a registrar of
               the Supreme Court and paid by the State.
        (4)    The Criminal Procedure Act 2004 sections 31 and 32, with any
30             necessary changes, apply respectively to and in respect of any
               warrant or summons issued by a court dealing with an appeal.




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                                 Provisions applicable to any appeal          Part 4

                                                                                s. 41



     41.         Sentencing or re-sentencing on appeal
           (1)   If under this Act an appeal court decides to impose a sentence, it
                 may do one or more of the following --
                   (a) order that the sentence is to be taken to have taken effect
5                        on a date before the date of the order;
                   (b) order that the sentence is to take effect on a date on or
                         after the date of the order.
           (2)   If under this Act an appeal court varies or sets aside a sentence
                 ("sentence A"), it may vary any other sentence --
10                 (a) that was imposed at or after the time when sentence A
                         was imposed; and
                   (b) that took into account sentence A.
           (3)   If under this Act an appeal court decides to vary a sentence, it
                 may do one or more of the following --
15                 (a) vary the sentence as imposed;
                   (b) impose a different sentence involving a different
                         sentencing option;
                   (c) order that the sentence is to be taken to have taken effect
                         on a date before the date of the order;
20                 (d) order that the sentence is to take effect on a date on or
                         after the date of the order.
           (4)   In exercising a power under this Act to vary a sentence an
                 appeal court may consider any matter relevant to the sentence
                 that has occurred between when the sentence was imposed and
25               when the appeal was heard.
           (5)   If an appeal court decides to impose a sentence, or vary a
                 sentence already imposed, on a party, it may do so in the
                 absence of the party, despite the Sentencing Act 1995
                 section 14.
30         (6)   If an appeal court, in deciding an appeal in relation to a person
                 sentenced to imprisonment --
                   (a) sets aside the sentence;

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     s. 42



                  (b)    varies the sentence, or amends the conviction in respect
                         of which the sentence was imposed; or
                   (c)   confirms the sentence,
                 the court must send a memorandum setting out the result of the
5                appeal to the chief executive officer (as defined in the Prisons
                 Act 1981).
           (7)   If subsection (6)(a) applies and the court does not impose
                 another sentence of imprisonment on the person, the person
                 must be released as soon as practicable after the memorandum
10               is received by the chief executive officer, unless the person is
                 required to be in custody for some other matter.
           (8)   If subsection (6)(b) applies, the warrant for the imprisonment of
                 the person previously issued and in force has effect as if it were
                 amended in accordance with the memorandum.
15         (9)   The memorandum is to be put in the records of the department
                 (as defined in the Prisons Act 1981) and is evidence of the
                 matters stated in it.
       (10)      This section is in addition to and does not affect the operation of
                 the Sentencing Act 1995 except as expressly stated.

20   42.         Result of appeal to be given to other court
           (1)   When an appeal is concluded, the appeal court must send a
                 memorandum setting out the result of the appeal to the lower
                 court.
           (2)   The memorandum is to be put in the records of the lower court
25               and is evidence of the matters stated in it.

     43.         Party in custody, entitlement to be present at appeal
           (1)   In this section --
                 "video link" means facilities, including closed circuit
                      television, that enable, at the same time, a court at one
30                    place to see and hear a person at another place and vice
                      versa.


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                                                                                 s. 44



           (2)   A party to an appeal who is in custody and who is
                 self-represented is entitled to be present at any proceedings
                 relating to the appeal.
           (3)   A party to an appeal who is in custody and who is represented
5                by a lawyer --
                   (a) is entitled to be present at the actual hearing of the
                         appeal; but
                  (b) is not entitled to appear at any other proceedings on the
                         appeal,
10               unless the appeal court orders otherwise.
           (4)   If a party to an appeal who is in custody is entitled and wants to
                 be present at proceedings on the appeal, the appeal court must
                 make any necessary orders to ensure the party appears before
                 the court in person or by means of a video link.
15         (5)   If a party to an appeal conducts himself or herself in a manner
                 that makes it impracticable to continue proceedings in his or her
                 presence, the appeal court may order the party to be removed
                 and the proceedings to proceed in the accused's absence or by
                 means of a video link.

20   44.         Appellant in custody, treatment of
                 If a convicted appellant --
                   (a) is in custody pending the conclusion of an appeal
                         commenced by him or her; and
                   (b) requests the chief executive officer (within the meaning
25                       of the Prisons Act 1981) to be treated as if he or she was
                         a prisoner on remand,
                 he or she is to be treated as such, even if he or she is also in
                 custody serving a sentence in relation to a conviction neither of
                 which is the subject of an appeal.




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     s. 45



     45.         Exhibits
           (1)   If an appeal court orders a lower court to deal with a case again,
                 the appeal court must return each exhibit received from the
                 lower court to it with orders to ensure the exhibits are kept by it
5                until the last to happen of the events referred to in
                 subsection (2).
           (2)   Unless subsection (1) applies, an appeal court must retain each
                 exhibit received from another court in relation to an appeal
                 until --
10                 (a) the time for appealing against a decision made on the
                         appeal has elapsed; or
                   (b) any appeal against a decision made on the appeal has
                         concluded,
                 whichever happens last, and then return it to the lower court.
15         (3)   Despite subsection (2), an appeal court --
                  (a) may dispose of an exhibit that it considers is dangerous
                        to retain; or
                  (b) may release an exhibit to a person who is entitled to
                        custody of it if the court considers that --
20                         (i) it is dangerous, impracticable or inconvenient for
                                it to be retained under this section; or
                          (ii) it is necessary for that person to have the use of
                                the exhibit.
           (4)   An appeal court that under subsection (3)(b) releases an exhibit
25               to a person may require the person, as a condition of being
                 given the exhibit, to give a written undertaking to the court as to
                 the care, maintenance and custody of the exhibit and its
                 re-delivery to the court.
           (5)   A person who, without a reasonable excuse, fails to carry out
30               such an undertaking commits an offence.
                 Penalty: A fine of $12 000 or imprisonment for 12 months.


     page 34
                                                   Criminal Appeals Bill 2004
                          Provisions applicable to any appeal          Part 4

                                                                        s. 45



    (6)   If under subsection (1) or (2) an exhibit is returned to a lower
          court, then, subject to any order made under subsection (1) --
            (a) the Criminal Procedure Act 2004 section 170 applies to
                  the exhibit, if further proceedings in the lower court are
5                 required as a result of the appeal; or
            (b) if no such further proceedings are required, the lower
                  court may release the exhibit to a person who in the
                  court's opinion is entitled to custody of it or may require
                  the party who tendered it in evidence to collect it.




                                                                     page 35
     Criminal Appeals Bill 2004
     Part 5         Referrals of questions of law to the Court of Appeal

     s. 46



                 Part 5 -- Referrals of questions of law to the
                              Court of Appeal
     46.          Referrals by superior courts
           (1)    A referral of a question of law to the Court of Appeal by a
5                 superior court under the Criminal Procedure Act 2004 must be
                  made --
                    (a) with a statement of the circumstances that gave rise to
                          the question of law; and
                    (b) in accordance with rules of court.
10         (2)    Each party to the prosecution in which the question arose is
                  entitled to be heard by the Court of Appeal on the referred
                  question.
           (3)    If it appears that a person referred to in subsection (2) will not
                  be making submissions to the Court of Appeal, the Attorney
15                General may instruct a lawyer to make submissions to the court
                  on behalf of the person.
           (4)    The Court of Appeal must consider the referred question and
                  give its judgment on it.

     47.          Referrals by Attorney General
20         (1)    In this section --
                  "superior court" means the Supreme Court, or the District
                      Court, or the Children's Court when constituted so as to
                      consist of or include a judge, but not the Court of Appeal.
           (2)    The Attorney General may refer to the Court of Appeal any
25                question of law that was decided by a superior court when
                  dealing with a charge of an indictable offence.
           (3)    The referral must be made --
                   (a) within 60 days after the date of the superior court's final
                         judgment on the charge;


     page 36
                                                           Criminal Appeals Bill 2004
                  Referrals of questions of law to the Court of Appeal         Part 5

                                                                                s. 48



                  (b)    with a statement of the circumstances that gave rise to
                         the question of law; and
                   (c)   in accordance with rules of court.
           (4)   A person who was charged with the offence or who is affected
5                by the superior court's decision is entitled to be heard by the
                 Court of Appeal on the question referred and the person's
                 reasonable costs of being legally represented in the Court of
                 Appeal are to be paid by the State.
           (5)   If it appears that a person referred to in subsection (4) will not
10               be making submissions to the Court of Appeal, the Attorney
                 General must instruct a lawyer to make submissions to the court
                 on behalf of the person.
           (6)   When a referral is made to it under this section, the Court of
                 Appeal --
15                (a) may require the Attorney General to provide any
                        information it considers is necessary to decide the
                        question of law; and
                  (b) must consider the question referred and give its
                        judgment on it.
20         (7)   The judgment of the Court of Appeal on a question of law
                 referred to it under this section does not affect or invalidate any
                 verdict or decision in the superior court on the charge.

     48.         Referrals, general provisions about
           (1)   This section applies if a question of law is referred to the Court
25               of Appeal under the Criminal Procedure Act 2004 or under
                 section 47(2).
           (2)   For the purpose of considering and deciding the referred
                 question, the Court of Appeal may exercise any power in
                 section 40.
30         (3)   A person must not publish --
                  (a) any report of such a referral; or

                                                                             page 37
    Criminal Appeals Bill 2004
    Part 5         Referrals of questions of law to the Court of Appeal

    s. 48



               (b)   any report of proceedings on the referral,
              that discloses the name or identity of a person charged in the
              indictment or affected by the decision of the superior court.
       (4)    A person who contravenes subsection (3) commits an offence.
5             Penalty:
                  (a) for an individual, a fine of $12 000 or imprisonment
                        for 12 months;
                  (b) for a corporation, a fine of $60 000.




    page 38
                                                         Criminal Appeals Bill 2004
                                                      Miscellaneous          Part 6

                                                                               s. 49



                             Part 6 -- Miscellaneous
     49.         Sentence may be varied etc. in specific cases
                 If --
                   (a)   a sentence imposed on a person ("sentence A") ceases
5                        to have effect other than as a result of --
                            (i) it being set aside in an appeal under this Act; or
                           (ii) the conviction for which it was imposed being
                                  set aside in an appeal under this Act;
                         and
10                (b)    at the time when sentence A ceases to have effect the
                         person is serving or has yet to serve another sentence
                         ("sentence B") imposed when or after sentence A was
                         imposed,
                 the Court of Appeal, on the application of the Attorney
15               General --
                   (c) may set aside sentence B and impose a new sentence
                        instead; or
                   (d) may vary sentence B.

     50.         Rules of court
20         (1)   This section is in addition to and does not affect the operation of
                 the Supreme Court Act 1935 section 167.
           (2)   The Supreme Court may make rules of court prescribing any
                 matter that is required or permitted by this Act to be prescribed,
                 or that is necessary or convenient to be prescribed for giving
25               effect to the purposes of this Act.
           (3)   Without limiting subsection (2), rules of court may --
                  (a) regulate the commencement and conduct of proceedings
                       under this Act;




                                                                            page 39
     Criminal Appeals Bill 2004
     Part 6         Miscellaneous

     s. 50



               (b)   provide for extending or shortening, with or without
                     conditions, the time allowed under this Act or the rules
                     of court for doing any act;
               (c)   provide for a proceeding under this Act to be dismissed
5                    without a hearing of it if the person who commenced it
                     does not conduct it in accordance with the rules of court
                     or orders made by the court;
               (d)   provide for the re-instatement of a proceeding under this
                     Act that has been dismissed without a hearing of it;
10             (e)   allow or require a party to a proceeding under this Act to
                     present the party's case in writing instead of or in
                     addition to doing so orally;
               (f)   provide for the discontinuance of proceedings under this
                     Act;
15             (g)   provide for the taxation of costs ordered to be paid in
                     appeals under Part 2;
               (h)   confer on a master or registrar of the Supreme Court,
                     either generally or in particular cases, and under such
                     circumstances and on such conditions as the rules
20                   specify, such of the jurisdiction of the court under this
                     Act as the rules specify.




     page 40
                                                                      Criminal Appeals Bill 2004
                                                                   Miscellaneous          Part 6

                                                                                             Defined Terms



                                     Defined Terms
      [This is a list of terms defined and the provisions where they are defined.
                             The list is not part of the law.]
Defined Term                                                                                        Provision(s)
appeal ......................................................................................................... 4(2)
appeal court.................................................................................................... 36
appellant ..................................................................................................... 4(2)
concluded.................................................................................................... 4(2)
Court of Appeal Registrar............................................................................ 4(2)
court of summary jurisdiction ...................................................................... 4(2)
decision............................................................................................................ 6
factual finding ............................................................................................32(2)
lower court..................................................................................................... 36
offence A ........................................................................................ 30(5), 32(2)
offence B............................................................................... 30(5), 32(6), 32(7)
offender ......................................................................................................... 22
rules of court ............................................................................................... 4(2)
section 27 finding.......................................................................................32(2)
sentence A............................................................................................41(2), 49
sentence B...................................................................................................... 49
superior court .................................................................................... 4(2), 47(1)
Supreme Court .........................................................................................4(2), 6
trial court ....................................................................................................... 22
video link...................................................................................................43(1)




 


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