Victorian Current Acts Victorian Current ActsS. 38ZAA(1)
amended by Nos 3/2016 s. 102, 1/2022
s. 83.
(1) The Director of Public Prosecutions may appeal to the County Court or, if the Children's Court was constituted by the President, 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 an order for unconditional release under section 38Y(4)(b) if he or she considers that—
(a) the order should not have been made; and
(b) an appeal should be brought in the public interest.
(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 order is made.
(3) A notice of appeal under subsection (2) must be signed by the Director of Public Prosecutions personally.
(4) A copy of the notice of appeal must be served personally on the child in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed.
(5) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the child in the special hearing, if that legal practitioner can reasonably be identified.
(6) A notice of appeal must be in the form prescribed by the rules of the appellate court.
(7) The Children's Court must transmit a notice of appeal filed under this section to the appellate court.
(8) On an appeal under subsection (1), the appellate court may—
(a) confirm the order; or
(b) set aside the order and by order declare that the child is liable to supervision under Division 5.
(9) The appellate court must not declare a child liable to supervision unless the court considers that the declaration is necessary in all the circumstances including—
(a) whether supervision is available in the community; and
(b) whether the child has complied with community supervision and the extent of that compliance; and
(c) whether a declaration is required for the protection of the child or the community.
(10) If the appellate court declares a child liable to supervision, the appellate court may—
(a) remit the matter, with or without directions, to the Children's Court; or
(b) make a supervision order in respect of the child.
(11) If the appellate court remits a matter to the Children's Court under subsection (10)(a), that court must make a supervision order in respect of the child in accordance with this Act and any directions given by the appellate court.
(12) 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 pending the making of a supervision order in respect of the child.
Division 4—Defence of mental impairment
S.
38ZA
inserted by No. 55/2014 s. 125 (as amended by No. 79/2014
s. 48).