Victorian Current Acts Victorian Current ActsS. 38ZE(1)
amended by Nos 3/2016 s. 103, 1/2022
s. 84.
(1) In a criminal proceeding in the Children's Court, if a finding of not guilty because of mental impairment is recorded against a child, 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 the Children's Court 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 hearing there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.
(7) Despite subsection (6), the appellate court 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.
(8) In any other case, the appellate court must dismiss an appeal under subsection (1).
(9) If the appellate court—
(a) allows an appeal under subsection (1) on a ground that the finding of not guilty because of mental impairment ought not to stand; and
(b) considers that the proper finding would have been guilty of an offence, whether the offence charged or an offence available as an alternative verdict—
the appellate court must substitute for the finding a finding of guilty of that offence and may make any order, or exercise any power, that the Children's Court could have made or exercised.
(10) Subject to subsection (9), if the appellate court allows an appeal under subsection (1), it must set aside the finding and either—
(a) enter a finding of not guilty of the offence charged; or
(b) order a new trial.
(11) If the appellate court orders a new trial, it 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.
S.
38ZF
inserted by No. 55/2014 s. 125 (as amended by No. 79/2014
s. 48).