Victorian Current Acts Victorian Current Acts(1) In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if a verdict of not guilty because of mental impairment is recorded against a person, the person may appeal to the Court of Appeal against the verdict on any ground of appeal, with the leave of the Court of Appeal.
(2) An application for leave to appeal under subsection (1) is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the verdict is recorded or any extension of that period granted under section 76C.
(3) The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.
(4) On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that—
(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as a result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.
(5) Despite subsection (4), the Court of Appeal may dismiss an appeal that would otherwise be allowed under that subsection if—
(a) none of the grounds for allowing the appeal relates to the issue of the mental impairment of the appellant; and
(b) the court considers that, but for the mental impairment of the appellant, the proper verdict would have been that the appellant was guilty of an offence other than the offence charged.
(6) In any other case, the Court of Appeal must dismiss an appeal under subsection (1).
(7) If the Court of Appeal—
(a) allows an appeal under subsection (1) on a ground that the verdict of not guilty because of mental impairment ought not to stand; and
(b) considers that the proper verdict would have been guilty of an offence, whether the offence charged or an offence available as an alternative verdict—
the Court of Appeal must substitute for the verdict a verdict of guilty of that offence and may make any order, or exercise any power, that the court from which the appeal was brought could have made or exercised.
(8) Subject to subsection (7), if the Court of Appeal allows an appeal under subsection (1), it must set aside the verdict and either—
(a) enter a judgment and verdict of acquittal; or
(b) order a new trial.
(9) If the Court of Appeal orders a new trial, it may make any order referred to in section 24(1)(a), (b), (c) or (e) pending the new trial.
S. 24A inserted by No. 7/2002 s. 6.