Victorian Current Acts Victorian Current ActsS. 38U(1)
amended by Nos 3/2016 s. 101, 1/2022 s. 82.
(1) In a criminal proceeding in the Children's Court, if the question has arisen whether a child is unfit to stand trial and on an investigation under this Division the Children's Court finds that the child is unfit to stand trial, the child may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against the finding on any ground of appeal.
(2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the finding is made.
(3) A copy of the notice of appeal must be served on the respondent in accordance with section 392 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice is filed.
(4) A notice of appeal must be in the form prescribed by the rules of the appellate court.
(5) The Children's Court must transmit a notice of appeal filed under this section to the appellate court.
(6) On an appeal under subsection (1), the appellate court must allow the appeal if the child satisfies the court that—
(a) the finding of unfitness to stand trial is unreasonable or cannot be supported having regard to the evidence; or
(b) the Children's Court made a material error of law; or
(c) for any other reason the appellate court considers that the finding should not stand.
(7) In any other case, the appellate court must dismiss an appeal under subsection (1).
(8) If the appellate court allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either—
(a) refer the matter to the Children's Court for hearing and determination of the offence charged against the child; or
(b) remit the matter for a rehearing of the investigation under this Division as to whether the child is fit to stand trial.
(9) Despite subsection (8), if the appellate court allows an appeal under subsection (1) but considers that the child is unfit to stand trial, it may affirm the finding and refer the matter to the Children's Court.
(10) If the appellate court remits a matter under subsection (8)(b)—
(a) it may give directions concerning the manner and scope of the rehearing; and
(b) the Children's Court conducting the rehearing must hear and determine the matter in accordance with the directions, if any.
(11) On remitting or referring a matter under this section, the appellate court may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child.
Division 3—Special hearings
S. 38V
inserted by No. 55/2014 s. 125 (as amended by No. 79/2014 s. 48).