Victorian Current Acts

CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 - SECT 57B

    (1)     A person may appeal to the Court of Appeal against a refusal to grant the person extended leave.

S. 57B(2) amended by Nos 29/2010 s. 31(1), 15/2015 s. 37(20).

    (2)     The Secretary to the Department of Health and Human Services may appeal to the Court of Appeal against a grant of extended leave to a forensic resident or a forensic patient if the Secretary considers that—

        (a)     extended leave should not have been granted; and

        (b)     an appeal should be brought in the public interest.

S. 57B(2A) inserted by No. 29/2010 s. 31(2), repealed by No. 15/2015 s. 37(21).

    *     *     *     *     *

    (3)     The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against a grant of extended leave if he or she—

        (a)     was a party to the proceeding in which extended leave was granted; and

        (b)     considers that extended leave should not have been granted; and

        (c)     considers that an appeal should be brought in the public interest.

S. 57B(3A) inserted by No. 68/2009 s. 97(Sch. item 39.38).

    (3A)     An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which extended leave is granted or refused (as the case requires) or any extension of that period granted under section 76C.

S. 57B(3B) inserted by No. 68/2009 s. 97(Sch. item 39.38).

    (3B)     If the appeal is commenced under subsection (1), the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of appeal within 7 days after the day on which the notice of appeal is filed.

S. 57B(3C) inserted by No. 68/2009 s. 97(Sch. item 39.38), amended by Nos 29/2010 s. 31(3), 15/2015 s. 37(22).

    (3C)     If the appeal is commenced by the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney‑General—

        (a)     the notice of appeal must be signed by that person personally; and

        (b)     a copy of the notice of appeal must be served personally on the respondent 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; and

        (c)     that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the application for extended leave, if that legal practitioner can reasonably be identified.

    (4)     On an appeal against a refusal to grant extended leave, the Court of Appeal may—

        (a)     confirm the refusal to grant extended leave; or

        (b)     grant extended leave in accordance with section 57; or

        (c)     remit the matter, with or without directions, to the court that refused to grant extended leave.

    (5)     On an appeal against a grant of extended leave, the Court of Appeal may—

        (a)     confirm the grant of extended leave; or

S. 57B(5)(b) amended by No. 68/2009 s. 97(Sch. item 39.39).

        (b)     set aside the grant and order that extended leave be refused; or

S. 57B(5)(c) amended by No. 68/2009 s. 97(Sch. item 39.39).

        (c)     set aside the grant and remit the matter, with or without directions, to the court that made the grant.

    (6)     If the Court of Appeal remits a matter to a court under subsection (4)(c) or (5)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.

S. 58 (Heading) inserted by No. 7/2002 s. 28(1).