New South Wales Consolidated Acts

CRIMINAL APPEAL ACT 1912 - SECT 7

7 Powers of court in special cases

(1) If it appears to the court that an appellant on an appeal under section 5 (1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefor as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted.

(1A) If on an appeal against a sentence under section 5 (1), 5D, 5DA or 5DB, the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial--

(a) in relation to any offence charged in any other count or part of the same indictment, or

(b) in relation to any offence charged in any count or part of any other indictment, or

(c) in relation to any offence dealt with under section 105 of the Criminal Procedure Act 1986 , or

(d) in relation to any back up offence or related offence dealt with under section 167 of the Criminal Procedure Act 1986 ,

and pass such sentence, whether more or less severe, in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence.

(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.

(3) Where on the conviction of the appellant the jury have found a special verdict, and the court considers that a wrong conclusion has been arrived at by the court of trial on the effect of that verdict, the court may, instead of allowing the appeal, order such conclusion to be recorded as appears to the court to be in law required by the verdict, and pass such sentence whether more or less severe, in substitution for the sentence passed, as may be warranted in law.

(4) If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, a special verdict of act proven but not criminally responsible should have been entered in respect of the appellant, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law or may make such other order (including an order releasing the appellant from custody, either unconditionally or subject to conditions) as the court considers appropriate.