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Western Australia
Criminal Appeals Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. This Act to be read with Criminal Procedure Act 2004 2
4. Interpretation 2
5. Appeal against sentence of superior court after
conviction by lower court, commencement of 3
Part 2 -- Appeals from courts of
summary jurisdiction
Division 1 -- Preliminary
6. Interpretation 4
Division 2 -- Appeals to a single judge
7. Right of appeal 4
8. Grounds for appealing 5
9. Leave to appeal required in all cases 6
10. Commencing an appeal 6
11. Sentences etc., effect of appeal on 7
12. Sentences etc., Supreme Court may suspend etc. 8
13. Supreme Court may refer appeal to Court of Appeal 9
14. Supreme Court's powers on an appeal 10
15. Conclusion of appeal, consequences 11
Division 3 -- Appeals from a single judge to the
Court of Appeal
16. Right of appeal to Court of Appeal 12
17. Commencing an appeal 12
18. Provisions applicable to appeals to Court of Appeal 12
19. Court of Appeal's additional powers on an appeal 13
332--2 page i
Criminal Appeals Bill 2004
Contents
Division 4 -- Costs
20. Costs against Attorney General, JPs or police officers 13
21. Costs orders, enforcement of 14
Part 3 -- Appeals from superior courts
Division 1 -- Preliminary
22. Interpretation 15
Division 2 -- Rights of appeal
23. Rights of appeal of offender 15
24. Rights of appeal of prosecutor 16
25. Rights of appeal if acquittal on account of
unsoundness of mind 17
26. Separate trial decision, interlocutory appeal against 17
Division 3 -- Commencing and deciding appeals
27. Leave to appeal required in all cases 19
28. Commencing an appeal 19
29. Sentences etc., Court of Appeal may stay etc. 20
30. Appeal against conviction, decision on 20
31. Appeal against sentence etc., decision on 22
32. Appeal under s. 25, decision on 23
33. Other appeals by prosecutor, decision on 26
34. New trial etc., procedure if ordered 27
Division 4 -- Miscellaneous
35. No fees or costs 27
Part 4 -- Provisions applicable to any
appeal
36. Interpretation 28
37. Application of this Part 28
38. Multiple appeals, consolidation etc. 28
39. Material to be considered on appeal 28
40. General powers to deal with appeals 29
41. Sentencing or re-sentencing on appeal 31
42. Result of appeal to be given to other court 32
43. Party in custody, entitlement to be present at appeal 32
44. Appellant in custody, treatment of 33
45. Exhibits 34
page ii
Criminal Appeals Bill 2004
Contents
Part 5 -- Referrals of questions of law
to the Court of Appeal
46. Referrals by superior courts 36
47. Referrals by Attorney General 36
48. Referrals, general provisions about 37
Part 6 -- Miscellaneous
49. Sentence may be varied etc. in specific cases 39
50. Rules of court 39
Defined Terms
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Criminal Appeals Bill 2004
A Bill for
An Act about appeals in criminal cases and about related matters.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Appeals Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Criminal Appeals Act 2004.
2. Commencement
5 This Act comes into operation on a day fixed by proclamation.
3. This Act to be read with Criminal Procedure Act 2004
This Act is to be read with the Criminal Procedure Act 2004.
4. Interpretation
(1) If not defined in this Act, words and expressions in this Act
10 have the same definitions as in the Criminal Procedure
Act 2004 unless the contrary intention appears.
(2) In this Act, unless the contrary intention appears --
"appeal" means an appeal under this Act or an application for
leave to appeal under this Act;
15 "appellant" includes an applicant for leave to appeal or for an
extension of time within which to appeal or apply for leave
to appeal;
"concluded", in relation to an appeal, means decided, dismissed
or discontinued;
20 "Court of Appeal Registrar" has the meaning given by the
Supreme Court Act 1935;
"court of summary jurisdiction" means a court, or a person,
that is acting in circumstances in which it is a court of
summary jurisdiction by virtue of another written law;
25 "rules of court" means rules of court made by the Supreme
Court;
"superior court" means the Supreme Court or the District
Court but not the Court of Appeal;
"Supreme Court" does not include the Court of Appeal.
page 2
Criminal Appeals Bill 2004
Preliminary Part 1
s. 5
5. Appeal against sentence of superior court after conviction
by lower court, commencement of
(1) This section applies if an accused is sentenced for an offence by
a superior court having been convicted of the offence by a court
5 of summary jurisdiction and committed to the superior court to
be sentenced for the offence.
(2) Any appeal against both the conviction by the court of summary
jurisdiction and the sentence imposed by the superior court must
be commenced and conducted under Part 3, despite Part 2.
10 (3) If in one or more appeals there are appeals against both a
conviction of an offence by a court of summary jurisdiction and
the sentence imposed by a superior court for the offence, the
appeals are to be dealt with together by the Court of Appeal
under Part 3, despite Part 2.
page 3
Criminal Appeals Bill 2004
Part 2 Appeals from courts of summary jurisdiction
Division 1 Preliminary
s. 6
Part 2 -- Appeals from courts of summary jurisdiction
Division 1 -- Preliminary
6. Interpretation
In this Part, unless the contrary intention appears --
5 "decision", of a court of summary jurisdiction, means any of
the following --
(a) a judgment entered under the Criminal Procedure
Act 2004 section 128(2) or (3);
(b) a decision ordering a permanent stay of a
10 prosecution;
(c) a decision to convict an accused of a charge, whether
after a plea of guilty or after a trial;
(d) a decision to acquit an accused of a charge;
(e) a decision to acquit an accused of a charge on
15 account of unsoundness of mind;
(f) a sentence imposed, or order made, as a result of a
conviction or acquittal;
(g) a refusal to make an order that might be made as a
result of a conviction or acquittal;
20 (h) a decision as to costs;
"Supreme Court" means the Supreme Court constituted by a
single judge sitting in its General Division.
Division 2 -- Appeals to a single judge
7. Right of appeal
25 (1) A person who is aggrieved by a decision of a court of summary
jurisdiction may appeal to the Supreme Court against the
decision.
(2) The Attorney General may appeal to the Supreme Court against
a decision of a court of summary jurisdiction.
page 4
Criminal Appeals Bill 2004
Appeals from courts of summary jurisdiction Part 2
Appeals to a single judge Division 2
s. 8
(3) The following decisions of a court of summary jurisdiction
cannot be the subject of an appeal under this Part --
(a) a decision that is declared by an Act to be final or not
appealable;
5 (b) a decision to commit or not to commit an accused for
trial or sentence;
(c) a decision as to bail.
(4) Except as provided by this section, no appeal lies against a
decision of a court of summary jurisdiction.
10 (5) Subsections (1), (2) and (4) are subject to any other written law
and in particular to the Children's Court of Western Australia
Act 1988 Part 5.
(6) This section does not affect the operation of the Bail Act 1982.
8. Grounds for appealing
15 (1) An appeal may be made under this Division on one or more of
these grounds --
(a) that the court of summary jurisdiction --
(i) made an error of law or fact, or of both law and
fact;
20 (ii) acted without or in excess of jurisdiction;
(iii) imposed a sentence that was inadequate or
excessive;
(b) that there has been a miscarriage of justice.
(2) An appeal may be made under this Division against a decision
25 even if the decision was made after a plea of guilty or an
admission of the truth of any matter.
(3) Despite subsections (1) and (2), no decision of, or proceedings
before, a court of summary jurisdiction, nor any document in
such proceedings, shall be held to be bad for want of form.
page 5
Criminal Appeals Bill 2004
Part 2 Appeals from courts of summary jurisdiction
Division 2 Appeals to a single judge
s. 9
(4) Without limiting subsection (3), a person cannot appeal against
a decision --
(a) on the ground that the person had not received a
prosecution notice; or
5 (b) on a ground that relates to any amendment of a
prosecution notice,
if the person was present at the hearing at which the decision
was made and did not then object on that ground.
9. Leave to appeal required in all cases
10 (1) The leave of the Supreme Court is required for each ground of
appeal in an appeal under this Division.
(2) After an appeal is commenced, the Supreme Court must not
give leave to appeal on a ground of appeal unless it is satisfied
the ground has a reasonable prospect of succeeding.
15 (3) Unless the Supreme Court gives leave to appeal on at least one
ground of appeal in an appeal, the appeal is to be taken to have
been dismissed.
(4) The Supreme Court may decide whether or not to give leave to
appeal --
20 (a) with or without written or oral submissions from the
parties to the appeal;
(b) before or at the hearing of, or when giving judgment on,
the appeal.
(5) As soon as practicable after the Supreme Court gives leave to
25 appeal against a decision, it must notify the court of summary
jurisdiction that made the decision.
10. Commencing an appeal
(1) An appeal under this Division must be commenced and
conducted in accordance with this Division and rules of court.
page 6
Criminal Appeals Bill 2004
Appeals from courts of summary jurisdiction Part 2
Appeals to a single judge Division 2
s. 11
(2) An appeal under this Division must be commenced by lodging
with the Supreme Court an application for leave to appeal that
sets out the grounds of the appeal.
(3) An appeal against a decision cannot be commenced later than
5 28 days after the date of the decision unless the Supreme Court
orders otherwise.
(4) If the date on which a person is sentenced for an offence is not
the date on which the person is convicted of the offence, the
time in subsection (3) for an appeal against either the conviction
10 or the sentence or both runs from the date of sentencing.
(5) On commencing an appeal, the appellant must serve a copy of
the application for leave to appeal on --
(a) the court of summary jurisdiction; and
(b) the other party or other parties to the proceedings before
15 the court of summary jurisdiction.
(6) The Supreme Court may at any time order the appellant to serve
a copy of the application for leave to appeal on any other person
the court thinks fit.
(7) As soon as practicable after it is served under subsection (5), a
20 court of summary jurisdiction must give the exhibits in the case
to the Supreme Court.
11. Sentences etc., effect of appeal on
(1) This section applies when the Supreme Court gives leave to
appeal against a decision unless and to the extent that an order
25 made under section 12 provides otherwise.
(2) After leave to appeal against a decision is given and until the
appeal is concluded, no warrant or order to enforce the decision
shall be issued, and no action to enforce the decision shall be
taken, except to enforce a sentence or order referred to in
30 subsection (6).
page 7
Criminal Appeals Bill 2004
Part 2 Appeals from courts of summary jurisdiction
Division 2 Appeals to a single judge
s. 12
(3) Any disqualification from holding or obtaining a licence to
drive a vehicle under the Road Traffic Act 1974, or under the
Sentencing Act 1995 Part 15, in respect of a conviction that is
the subject of an appeal is suspended until the appeal is
5 concluded.
(4) Any period during which the disqualification is so suspended
must not be taken into account in calculating the period of the
disqualification.
(5) Subject to subsection (6) and the Fines, Penalties and
10 Infringement Notices Enforcement Act 1994 section 101B, any
sentence imposed, or any other order made, under the
Sentencing Act 1995, the Young Offenders Act 1994, or any
other written law, is suspended until the appeal is concluded.
(6) Subsection (5) does not apply to --
15 (a) a sentence of imprisonment, whether or not it is
suspended under the Sentencing Act 1995 Part 11 or is
indefinite imprisonment imposed under Part 14 of that
Act;
(b) a sentence of detention under the Young Offenders
20 Act 1994; and
(c) an order of forfeiture.
12. Sentences etc., Supreme Court may suspend etc.
(1) At any time after an appeal under this Division is commenced
against a decision of a court of summary jurisdiction, the
25 Supreme Court may make any order it thinks fit that suspends or
continues in effect until the appeal is concluded --
(a) the decision;
(b) any sentence imposed, or order made, by the court of
summary jurisdiction as a result of the decision;
30 (c) any statutory consequence of the decision.
(2) The Supreme Court may amend or cancel an order made under
this section at any time.
page 8
Criminal Appeals Bill 2004
Appeals from courts of summary jurisdiction Part 2
Appeals to a single judge Division 2
s. 13
(3) An order may be made under this section before or after the
Supreme Court decides whether or not to give leave to appeal.
(4) If the Supreme Court makes, amends or cancels any such order,
it must give a copy of the order --
5 (a) to the court of summary jurisdiction concerned; and
(b) if the order relates to the statutory consequence of the
decision being appealed, to any person who under a
written law is required to register the statutory
consequence.
10 (5) Despite subsections (1) and (2), if an appellant or respondent is
serving a sentence of imprisonment --
(a) the sentence must not be suspended unless he or she is
granted bail under the Bail Act 1982; and
(b) he or she must not be released from custody until he or
15 she becomes entitled to be released under that Act.
(6) If an appeal is commenced against a decision involving or
giving rise to the imposition of a fine (as defined in the Fines,
Penalties and Infringement Notices Enforcement Act 1994
section 28(1)), an order cannot be made under this section.
20 (7) An order made under this section has effect despite section 11.
13. Supreme Court may refer appeal to Court of Appeal
(1) An appeal under this Division must be dealt with by the
Supreme Court constituted by a single judge sitting in its
General Division, unless an order is made under subsection (2).
25 (2) At any time before an appeal is concluded, the Supreme Court,
on its own initiative or on the application of a party may order
that the appeal be dealt with by the Court of Appeal.
(3) If an order is made under subsection (2), this Division, with any
necessary changes, applies as if --
30 (a) the appeal had been made to the Court of Appeal; and
page 9
Criminal Appeals Bill 2004
Part 2 Appeals from courts of summary jurisdiction
Division 2 Appeals to a single judge
s. 14
(b) unless the context requires otherwise, references to the
Supreme Court were to the Court of Appeal.
14. Supreme Court's powers on an appeal
(1) In deciding an appeal, the Supreme Court may do one or more
5 of the following --
(a) dismiss the appeal;
(b) allow the appeal;
(c) set aside or vary the decision of the court of summary
jurisdiction and sentence imposed, order made or thing
10 done as a result of the decision;
(d) substitute a decision that should have been made by the
court of summary jurisdiction;
(e) order the case to be dealt with again by the court of
summary jurisdiction, with or without orders to that
15 court --
(i) as to how or by whom it is to be constituted;
(ii) as to how it must deal with the case;
(f) make any order under the Magistrates Court Act 2004
section 36(6);
20 (g) if the appeal is against a decision to acquit an accused of
a charge on account of unsoundness of mind or to make
or refuse to make an order under the Criminal Law
(Mentally Impaired Accused) Act 1996, exercise any
power that the Court of Appeal may exercise under
25 section 32;
(h) make an order as to the costs of the appeal and the costs
of the proceedings in the court of summary jurisdiction;
(i) make any other order it thinks fit.
(2) Despite subsection (1)(b), even if a ground of appeal might be
30 decided in favour of the appellant, the Supreme Court may
dismiss the appeal if it considers that no substantial miscarriage
of justice has occurred.
page 10
Criminal Appeals Bill 2004
Appeals from courts of summary jurisdiction Part 2
Appeals to a single judge Division 2
s. 15
(3) The Supreme Court is not required to set aside or vary a
decision of a court of summary jurisdiction because the court
omitted to make any necessary finding of fact if the facts or
evidence --
5 (a) in substance support the decision; or
(b) justify the finding,
and the Supreme Court, under subsection (1), may instead either
vary the decision or substitute another decision for it.
(4) On an appeal against a conviction, the Supreme Court may vary
10 a decision of a court of summary jurisdiction or substitute
another decision for it if there is some excess which may,
consistently with the merits of the case, be corrected.
(5) On an appeal against a sentence, the Supreme Court may have
regard to any relevant matter that has occurred between when
15 the offender was convicted and when the appeal was heard.
15. Conclusion of appeal, consequences
(1) The decision of the Supreme Court, or the decision of the court
of summary jurisdiction as varied by the Supreme Court, other
than a decision under section 13(2) or 14(1)(e) or (f), has effect
20 as if it were the decision of the court of summary jurisdiction,
and may be enforced accordingly.
(2) The court of summary jurisdiction may take any steps that are
necessary to give effect to any decision of the Supreme Court of
a kind mentioned in section 14(1)(e).
25 (3) When an appeal is concluded, any warrant or other process that
was suspended, and any thing the doing or operation of which
was suspended under section 11, or under an order made under
section 12, again has effect, subject to any order of the Supreme
Court.
30 (4) Subsection (3) does not limit the operation of section 41(8).
page 11
Criminal Appeals Bill 2004
Part 2 Appeals from courts of summary jurisdiction
Division 3 Appeals from a single judge to the Court of Appeal
s. 16
Division 3 -- Appeals from a single judge to the
Court of Appeal
16. Right of appeal to Court of Appeal
(1) A person whose application to extend the time to commence an
5 appeal under Division 2 is refused by a single judge of the
Supreme Court sitting in its General Division may appeal to the
Court of Appeal against the decision.
(2) A party to an appeal under Division 2 who is aggrieved by a
decision made in the appeal by a single judge of the Supreme
10 Court sitting in its General Division that --
(a) refuses leave to appeal; or
(b) dismisses or decides an appeal,
may appeal to the Court of Appeal against the decision.
(3) The Attorney General may appeal to the Court of Appeal
15 against a decision referred to in subsection (1) or (2).
17. Commencing an appeal
(1) An appeal under this Division must be commenced and
conducted in accordance with this Division and rules of court.
(2) An appeal under this Division must be commenced by lodging
20 with the Court of Appeal an application for leave to appeal that
sets out the grounds of the appeal.
(3) An appeal under this Division against a decision of a single
judge cannot be commenced later than 21 days after the date of
the decision unless the Court of Appeal orders otherwise.
25 18. Provisions applicable to appeals to Court of Appeal
Subject to this Division, Division 2 (other than sections 7, 8, 10
and 13), with any necessary changes, applies to and in respect of
an appeal under this Division as if --
(a) the appeal were an appeal under Division 2; and
page 12
Criminal Appeals Bill 2004
Appeals from courts of summary jurisdiction Part 2
Costs Division 4
s. 19
(b) unless the context requires otherwise, references in
Division 2 --
(i) to a court of summary jurisdiction were to the
Supreme Court sitting in its General Division;
5 and
(ii) to the Supreme Court were to the Court of
Appeal.
19. Court of Appeal's additional powers on an appeal
(1) This section does not limit the operation of section 18.
10 (2) In deciding an appeal under this Division, the Court of Appeal
may, in addition to exercising any of the powers in section 14,
do one or more of the following --
(a) order the case to be dealt with again by the court of
summary jurisdiction, with or without orders to that
15 court --
(i) as to how or by whom it is to be constituted;
(ii) as to how it must deal with the case;
(b) make an order as to the costs of the appeal and the costs
of the proceedings in the court of summary jurisdiction.
20 Division 4 -- Costs
20. Costs against Attorney General, JPs or police officers
(1) If the Attorney General is an appellant in proceedings under this
Part, the Supreme Court must not order the Attorney General to
pay the costs of any of the respondents, but the Supreme Court
25 may order that a respondent be paid costs, and in such a case --
(a) a registrar of the Supreme Court must give that
respondent a certificate sealed with the seal of the
Supreme Court showing the amount of the costs; and
(b) the person may recover that amount in a court of
30 competent jurisdiction as a debt due by the State.
page 13
Criminal Appeals Bill 2004
Part 2 Appeals from courts of summary jurisdiction
Division 4 Costs
s. 21
(2) If a JP or a police officer, acting in an official capacity, is a
party to proceedings under this Part, the Supreme Court must
not order that the JP or officer is to pay any costs.
(3) Despite subsection (2), if a police officer is an appellant in an
5 appeal under this Part and the decision appealed against --
(a) is confirmed; or
(b) if not confirmed, has in the opinion of the Supreme
Court involved a point of law of exceptional public
importance,
10 the Supreme Court may order that a respondent be paid costs,
and in such a case --
(c) the Supreme Court must give that respondent a
certificate sealed with the seal of the Supreme Court
showing the amount of the costs; and
15 (d) the person may recover that amount in a court of
competent jurisdiction as a debt due by the State.
21. Costs orders, enforcement of
(1) This section applies if under this Part the Supreme Court orders
a person to pay any costs.
20 (2) If the money is not paid within 28 days after the date of the
order, the person to whom the money is to be paid may enforce
the order by lodging a certified copy of it, and an affidavit
stating to what extent it has not been complied with, with a
court of competent jurisdiction.
25 (3) When lodged, the order is to be taken to be a judgment of the
court and may be enforced accordingly.
(4) This section does not prevent the recovery of the money by
means expressly provided by a written law.
page 14
Criminal Appeals Bill 2004
Appeals from superior courts Part 3
Preliminary Division 1
s. 22
Part 3 -- Appeals from superior courts
Division 1 -- Preliminary
22. Interpretation
In this Part --
5 "offender" means a person who has been convicted of an
offence;
"trial court", in relation to an appeal under this Part, means the
superior court that dealt with the case that is the subject of
the appeal.
10 Division 2 -- Rights of appeal
23. Rights of appeal of offender
(1) An offender convicted of an offence on indictment may appeal
to the Court of Appeal against any or all of the following
decisions --
15 (a) the conviction;
(b) the sentence imposed on the offender or any order made
as a result of the conviction;
(c) a refusal to make an order that might be made as a result
of the conviction.
20 (2) An offender convicted by a court of summary jurisdiction and
sentenced by a superior court may appeal to the Court of Appeal
against any or all of the following decisions --
(a) the conviction;
(b) the sentence imposed on the person or any order made
25 as a result of the conviction;
(c) a refusal to make an order that might be made as a result
of the conviction.
page 15
Criminal Appeals Bill 2004
Part 3 Appeals from superior courts
Division 2 Rights of appeal
s. 24
24. Rights of appeal of prosecutor
(1) The prosecutor may appeal to the Court of Appeal against any
one or more of the following decisions by a judge of a superior
court in relation to a charge of an indictable offence --
5 (a) the sentence imposed on a person convicted of the
charge or any order made as a result of the conviction;
(b) the sentence imposed on a person convicted by a court
of summary jurisdiction of the charge and committed for
sentence or any order made as a result of the conviction;
10 (c) a refusal to make an order that might be made as a result
of a conviction.
(2) The prosecutor may also appeal to the Court of Appeal against
any one or more of the following decisions by a judge of a
superior court in relation to a charge of an indictable offence --
15 (a) a decision refusing to consent to the discontinuance of
the prosecution of the charge;
(b) a judgment entered under the Criminal Procedure
Act 2004 section 128(2) or (3);
(c) a decision ordering a permanent stay of proceedings on
20 the charge;
(d) a decision ordering an adjournment of proceedings on
the charge;
(e) a judgment of acquittal (other than a judgment of
acquittal on account of unsoundness of mind) --
25 (i) entered after a decision by the judge that the
accused has no case to answer on the charge; or
(ii) entered in a trial by the judge alone;
(f) any judgment entered as a result of any of the above
decisions;
30 (g) any order made as a result of any of the above decisions
or judgments.
page 16
Criminal Appeals Bill 2004
Appeals from superior courts Part 3
Rights of appeal Division 2
s. 25
25. Rights of appeal if acquittal on account of unsoundness of
mind
(1) This section applies if an accused is acquitted of a charge in an
indictment on account of unsoundness of mind.
5 (2) The accused may appeal to the Court of Appeal against any or
all of the following decisions --
(a) the acquittal;
(b) any order made under the Criminal Law (Mentally
Impaired Accused) Act 1996 as a result of the acquittal.
10 (3) The prosecutor may appeal to the Court of Appeal against any
or all of the following decisions --
(a) the acquittal if it was entered after a finding made by a
judge under the Criminal Procedure Act 2004 section 93
or in a trial by judge alone;
15 (b) any order made under the Criminal Law (Mentally
Impaired Accused) Act 1996 as a result of the acquittal;
(c) any refusal to make an order under the Criminal Law
(Mentally Impaired Accused) Act 1996 as a result of the
acquittal.
20 26. Separate trial decision, interlocutory appeal against
(1) If an accused is charged in one indictment with 2 or more
offences --
(a) the prosecutor may appeal to the Court of Appeal
against any order made by a judge of a superior court
25 that there be a separate trial of any of the charges; and
(b) the accused may appeal to the Court of Appeal against a
refusal by a judge of a superior court to order that there
be a separate trial of any of the charges.
(2) If an accused is tried at one trial with 2 or more offences
30 charged in one indictment and is convicted of any of those
offences, an appeal by the accused under this Part against that
page 17
Criminal Appeals Bill 2004
Part 3 Appeals from superior courts
Division 2 Rights of appeal
s. 26
conviction on any ground that relates to the joinder of the
charges in the indictment cannot be allowed on that ground if
the accused has already appealed under subsection (1)(b),
except on the basis of any relevant matter that emerged at any
5 time after the decision that was the subject of that appeal.
(3) If 2 or more accused are charged on indictment with an
offence --
(a) the prosecutor may appeal to the Court of Appeal
against any order made by a judge of a superior court
10 that there be a separate trial of any of the accused; and
(b) any accused may appeal to the Court of Appeal against a
refusal by a judge of a superior court to order that there
be a separate trial of any of the accused.
(4) If an accused is tried with one or more other accused in one trial
15 and is convicted of any offence, an appeal by the accused under
this Part against that conviction on any ground that relates to the
joinder of the accused in the indictment cannot be allowed on
that ground if the accused has already appealed under
subsection (3)(b), except on the basis of any relevant matter that
20 emerged at any time after the decision that was the subject of
that appeal.
(5) An appeal under this section against a decision must be
commenced within 7 days after the date of the decision and
before the trial of the accused starts.
25 (6) If an appeal under this section is commenced after the trial of
the accused concerned has started, it must be dismissed.
(7) On an appeal under this section against an order or a refusal to
make an order, the Court of Appeal may confirm the order or
refusal, or set it aside and make any order that could have been
30 made on the application for a separate trial.
page 18
Criminal Appeals Bill 2004
Appeals from superior courts Part 3
Commencing and deciding appeals Division 3
s. 27
Division 3 -- Commencing and deciding appeals
27. Leave to appeal required in all cases
(1) The leave of the Court of Appeal is required for each ground of
appeal in an appeal under this Part.
5 (2) After an appeal is commenced, the Court of Appeal must not
give leave to appeal on a ground of appeal unless it is satisfied
the ground has a reasonable prospect of succeeding.
(3) Unless the Court of Appeal gives leave to appeal on at least one
ground of appeal in an appeal, the appeal is to be taken to have
10 been dismissed.
(4) The Court of Appeal may decide whether or not to give leave to
appeal --
(a) with or without written or oral submissions from the
parties to the appeal;
15 (b) before or at the hearing of, or when giving judgment on,
the appeal.
28. Commencing an appeal
(1) An appeal under this Part must be commenced and conducted in
accordance with this Part and rules of court.
20 (2) An appeal under this Part must be commenced by lodging with
the Court of Appeal an application for leave to appeal that sets
out the grounds of the appeal.
(3) An appeal under this Part against a decision or judgment cannot
be commenced later than 21 days after the date of the decision
25 or judgment unless the Court of Appeal orders otherwise.
(4) If the date on which a person is sentenced for an offence is not
the date on which the person is convicted of the offence, the
time in subsection (3) for an appeal against either the conviction
or the sentence or both runs from the date of sentencing.
page 19
Criminal Appeals Bill 2004
Part 3 Appeals from superior courts
Division 3 Commencing and deciding appeals
s. 29
(5) On commencing an appeal, the appellant must serve a copy of
the application for leave to appeal on --
(a) the District Court if it made the decision that is the
subject of the appeal; and
5 (b) the other party or other parties to the proceedings before
the trial court.
(6) The Court of Appeal may at any time order the appellant to
serve a copy of the application for leave to appeal on any other
person the court thinks fit.
10 (7) As soon as practicable after it is served under subsection (5), the
District Court must give the exhibits in the case to the Court of
Appeal.
29. Sentences etc., Court of Appeal may stay etc.
At any time after an appeal is commenced under this Part and
15 before it is concluded, the Court of Appeal may --
(a) make any order that a superior court can make under the
Criminal Procedure Act 2004 section 121; or
(b) amend or cancel any such order that has been made,
whether by a superior court or the Court of Appeal.
20 30. Appeal against conviction, decision on
(1) This section applies in the case of an appeal against a conviction
by an offender.
(2) Unless under subsection (3) the Court of Appeal allows the
appeal, it must dismiss the appeal.
25 (3) The Court of Appeal must allow the appeal if in its opinion --
(a) the verdict of guilty on which the conviction is based
should be set aside because, having regard to the
evidence, it is unreasonable or cannot be supported;
(b) the conviction should be set aside because of a wrong
30 decision on a question of law by the judge; or
(c) there was a miscarriage of justice.
page 20
Criminal Appeals Bill 2004
Appeals from superior courts Part 3
Commencing and deciding appeals Division 3
s. 30
(4) Despite subsection (3), even if a ground of appeal might be
decided in favour of the offender, the Court of Appeal may
dismiss the appeal if it considers that no substantial miscarriage
of justice has occurred.
5 (5) If the Court of Appeal allows the appeal, it must set aside the
conviction of the offence ("offence A") and must --
(a) order a trial or a new trial;
(b) enter a judgment of acquittal of offence A;
(c) if --
10 (i) the offender could have been found guilty of
some other offence ("offence B") instead of
offence A; and
(ii) the court is satisfied that the jury must have been
satisfied or, in a trial by a judge alone, that the
15 judge must have been satisfied of facts that prove
the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose
a sentence for offence B that is no more severe than the
sentence that was imposed for offence A;
20 (d) if the court is satisfied that the offender should have
been found not guilty of offence A on account of
unsoundness of mind -- enter a judgment of acquittal of
offence A on account of unsoundness of mind and deal
with the offender under the Criminal Law (Mentally
25 Impaired Accused) Act 1996; or
(e) if the offender could have been found guilty of some
other offence ("offence B") instead of offence A and the
court is satisfied --
(i) that the jury must have been satisfied or, in a trial
30 by a judge alone, that the judge must have been
satisfied of facts that prove the offender did the
acts or made the omissions that constitute
offence B; and
page 21
Criminal Appeals Bill 2004
Part 3 Appeals from superior courts
Division 3 Commencing and deciding appeals
s. 31
(ii) that the offender should have been found not
guilty of offence B on account of unsoundness of
mind,
enter a judgment of acquittal of offence B on account of
5 unsoundness of mind and deal with the offender under
the Criminal Law (Mentally Impaired Accused)
Act 1996.
(6) If the Court of Appeal enters a judgment of acquittal of
offence A or enters a judgment of conviction of offence B, it
10 may vary any sentence --
(a) that was imposed for an offence other than offence A at
or after the time when the offender was sentenced for
offence A; and
(b) that took into account the sentence for offence A.
15 31. Appeal against sentence etc., decision on
(1) This section applies in the case of an appeal commenced by an
offender under section 23, or by a prosecutor under
section 24(1), against --
(a) the sentence imposed or any order made as a result of --
20 (i) a conviction on indictment; or
(ii) a conviction by a court of summary jurisdiction
in respect of which the offender was committed
for sentence;
(b) a refusal by a superior court to make an order that might
25 be made as a result of such a conviction.
(2) In deciding the appeal, the Court of Appeal may have regard to
any relevant matter that has occurred between when the
offender was convicted and when the appeal was heard.
(3) Unless under subsection (4) the Court of Appeal allows the
30 appeal, it must dismiss the appeal.
page 22
Criminal Appeals Bill 2004
Appeals from superior courts Part 3
Commencing and deciding appeals Division 3
s. 32
(4) The Court of Appeal may allow the appeal if, in its opinion --
(a) in the case of an appeal referred to in subsection (1)(a), a
different sentence should have been imposed; or
(b) in the case of an appeal referred to in subsection (1)(b),
5 an order should have been made.
(5) If the Court of Appeal allows an appeal referred to in
subsection (1)(a), it must set aside the sentence and --
(a) may instead impose a new sentence that is either more
or less severe; or
10 (b) may send the charge back to the court that imposed the
sentence to be dealt with further.
(6) If the Court of Appeal allows an appeal referred to in
subsection (1)(b), it --
(a) may make any order that should have been made; or
15 (b) may send the charge back to the court that refused to
make the order to be dealt with further.
32. Appeal under s. 25, decision on
(1) This section applies in the case of an appeal commenced under
section 25 in relation to a charge of which an accused has been
20 acquitted on account of unsoundness of mind under The
Criminal Code section 27.
(2) An appeal against an acquittal of an offence ("offence A") on
account of unsoundness of mind is to be dealt with as if the
appeal were against --
25 (a) a finding that the accused did the acts or made the
omissions that constitute the offence (the "factual
finding");
(b) a finding that the accused was not criminally responsible
for those acts or omissions on account of unsoundness
30 of mind (the "section 27 finding"); or
(c) both the factual finding and the section 27 finding,
as the case requires.
page 23
Criminal Appeals Bill 2004
Part 3 Appeals from superior courts
Division 3 Commencing and deciding appeals
s. 32
(3) Unless under subsection (4) the Court of Appeal allows an
appeal referred to in subsection (2), it must dismiss the appeal.
(4) In an appeal referred to in subsection (2), the Court of Appeal
may allow the appeal against the factual finding or against the
5 section 27 finding if in its opinion --
(a) the finding should be set aside because, having regard to
the evidence, it is unreasonable or cannot be supported;
(b) the finding should be set aside because of a wrong
decision on a question of law by the judge; or
10 (c) there was a miscarriage of justice.
(5) Despite subsection (4), even if a ground of appeal might be
decided in favour of the appellant, the Court of Appeal may
dismiss an appeal if it considers that no substantial miscarriage
of justice has occurred.
15 (6) If both the appeal against the factual finding and the appeal
against the section 27 finding are allowed, the Court of Appeal
must set aside the acquittal of offence A on account of
unsoundness of mind and must --
(a) order a trial or a new trial;
20 (b) enter a judgment of acquittal (other than on account of
unsoundness of mind) of offence A; or
(c) if --
(i) the offender could have been found guilty of
some other offence ("offence B") instead of
25 offence A; and
(ii) the court is satisfied that the jury must have been
satisfied or, in a trial by a judge alone, that the
judge must have been satisfied of facts that prove
the offender was guilty of offence B,
30 enter a judgment of conviction for offence B and deal
with the accused accordingly.
page 24
Criminal Appeals Bill 2004
Appeals from superior courts Part 3
Commencing and deciding appeals Division 3
s. 32
(7) If the appeal against the factual finding is allowed and the
appeal against the section 27 finding is dismissed, the Court of
Appeal must set aside the acquittal of offence A on account of
unsoundness of mind and must --
5 (a) order a trial or a new trial;
(b) enter a judgment of acquittal (other than on account of
unsoundness of mind) of offence A; or
(c) if --
(i) the offender could have been found guilty of
10 some other offence ("offence B") instead of
offence A; and
(ii) the court is satisfied that the jury must have been
satisfied or, in a trial by a judge alone, that the
judge must have been satisfied of facts that prove
15 the offender was guilty of offence B,
enter a judgment of acquittal of offence B on account of
unsoundness of mind and deal with the offender under
the Criminal Law (Mentally Impaired Accused)
Act 1996.
20 (8) If the appeal against the factual finding is dismissed and the
appeal against the section 27 finding is allowed, the Court of
Appeal must set aside the acquittal of offence A on account of
unsoundness of mind and must --
(a) if it is satisfied that, but for the section 27 finding, the
25 accused would have been found guilty of --
(i) offence A; or
(ii) some other offence of which the accused might
have been convicted instead of offence A,
enter a judgment of conviction for the offence concerned
30 and deal with the accused accordingly; or
(b) otherwise, order a trial or a new trial.
page 25
Criminal Appeals Bill 2004
Part 3 Appeals from superior courts
Division 3 Commencing and deciding appeals
s. 33
(9) In an appeal against an order made, or a refusal to make an
order, under the Criminal Law (Mentally Impaired Accused)
Act 1996 as a result of an acquittal on account of unsoundness
of mind, section 31, with any necessary changes, applies as if
5 the order were a sentence or the refusal were a refusal to make
an order that might be made as a result of a conviction, as the
case requires.
33. Other appeals by prosecutor, decision on
(1) This section applies in the case of an appeal by a prosecutor
10 against any decision referred to in section 24(2) in relation to an
indictable charge.
(2) On the appeal the Court of Appeal --
(a) may affirm, vary or set aside the decision and any
judgment entered or order made as a result of the
15 decision;
(b) may enter any judgment, make any order, exercise any
power (including a power to amend the charge), and
direct any step to be taken, which should have been
given, made, exercised or taken in the first instance; and
20 (c) if it sets aside a decision, may order a trial or a new trial,
as the case requires.
(3) If the Court of Appeal sets aside a judgment entered under the
Criminal Procedure Act 2004 section 128(2) after the accused
was found guilty of an offence but before the accused was
25 convicted of it, the court must --
(a) enter a judgment of conviction of the offence against the
accused; and
(b) order the accused to appear to receive judgment and be
dealt with according to law by the Court of Appeal or
30 the trial court, as the Court of Appeal decides.
(4) If an order is made under subsection (3), the Court of Appeal
Registrar may issue a warrant to have the accused arrested and
brought before the Court of Appeal or the trial court, as the case
requires, as soon as practicable.
page 26
Criminal Appeals Bill 2004
Appeals from superior courts Part 3
Miscellaneous Division 4
s. 34
34. New trial etc., procedure if ordered
(1) If as a result of a decision by the Court of Appeal --
(a) a trial or a new trial is required;
(b) a person is to be required to plead to a charge; or
5 (c) an issue needs to be tried,
in the trial court the Court of Appeal may fix the time and place
for the parties to appear in the trial court and give any directions
about it that are necessary.
(2) For the purposes of any such appearance, the Court of Appeal
10 Registrar may issue a warrant to have the person who is to be
tried or required to plead arrested and brought before the trial
court as soon as practicable.
Division 4 -- Miscellaneous
35. No fees or costs
15 (1) A party to an appeal under this Part must not be charged a fee
by a court for or in respect of any act or proceeding that relates
to the appeal or its commencement.
(2) The Court of Appeal cannot order a party to an appeal under
this Part to pay another party's costs of or relating to the appeal.
page 27
Criminal Appeals Bill 2004
Part 4 Provisions applicable to any appeal
s. 36
Part 4 -- Provisions applicable to any appeal
36. Interpretation
In this Part, unless the contrary intention appears --
"appeal court", in relation to an appeal, means the division of
5 the Supreme Court that has jurisdiction to hear the appeal;
"lower court", in relation to an appeal, means the court that
made the decision that is the subject of the appeal.
37. Application of this Part
This Part applies to any appeal under this Act.
10 38. Multiple appeals, consolidation etc.
(1) An appellant may appeal against 2 or more decisions made at
the same hearing and in such a case the appeals must be heard
and decided together unless and to the extent that the appeal
court orders otherwise.
15 (2) If more than one appeal against a decision is made, the appeal
court may hear and decide 2 or more of them at the same time.
(3) An appeal court may hear and decide 2 or more appeals, each of
which is against a different decision, at the same time if it is in
the interests of justice to do so.
20 39. Material to be considered on appeal
(1) An appeal court must decide an appeal on the evidence and
material that were before the lower court.
(2) An appeal court may ascertain what evidence and material was
before the lower court in any way it considers sufficient.
25 (3) Subsection (1) does not affect the power of an appeal court in
section 40 to admit evidence.
(4) Subsection (1) does not prevent an appeal court from
considering any evidence that the lower court refused to admit.
page 28
Criminal Appeals Bill 2004
Provisions applicable to any appeal Part 4
s. 40
40. General powers to deal with appeals
(1) For the purposes of dealing with an appeal, an appeal court may
do any or all of the following --
(a) order the production of any record or thing, whether or
5 not an exhibit, that is or may be relevant to the appeal;
(b) order a witness who would have been compellable at the
trial in the lower court, whether or not called at the trial,
to attend and be examined before the appeal court;
(c) if a person was a compellable witness, or would have
10 been a compellable witness if called, at the trial in the
lower court --
(i) order the person to attend and be examined in
accordance with rules of court or the directions
of the appeal court before a person appointed by
15 it under subsection (2); and
(ii) order the evidence of the person to be recorded
and the recording to be admitted as evidence in
the court;
(d) subject to the Evidence Act 1906 section 9, admit the
20 evidence of a witness, including a convicted appellant,
who is a competent but not compellable witness;
(e) admit any other evidence;
(f) if a question in the appeal involves a lengthy
examination of records, or a scientific or local
25 investigation, that the court considers cannot be done
conveniently before the court --
(i) appoint a special commissioner to inquire into
and report on the question; and
(ii) act on the report so far as the court thinks fit;
30 (g) appoint a person with special expert knowledge to act as
an assessor to the court if it considers that the
knowledge is required to properly decide the appeal;
page 29
Criminal Appeals Bill 2004
Part 4 Provisions applicable to any appeal
s. 40
(h) require the person or persons who constituted the lower
court to supply a report about the decision or the case in
which it was made or any aspect of either;
(i) order a party to give particulars to support a ground of
5 appeal;
(j) if there are inadequate particulars to support a ground of
appeal, strike it out without deciding it;
(k) amend or add a ground of appeal;
(l) exercise any power that the Supreme Court may exercise
10 in a civil case;
(m) issue any warrant or document, and make any order, that
is necessary to give effect to its decision on the appeal
or that may be necessary as a result of the
discontinuance or dismissal of the appeal;
15 (n) issue any warrant or other document for the purpose of
enforcing an order or sentence of the court.
(2) For the purposes of subsection (1)(c)(i) --
(a) in an appeal under Part 2 a single judge may appoint a
magistrate, JP or some other officer or person to conduct
20 the examination;
(b) in an appeal under Part 3 the Court of Appeal may
appoint a judge of appeal, Supreme Court Judge, District
Court Judge, magistrate, JP or some other officer or
person to conduct the examination.
25 (3) If a person is appointed as a special commissioner or assessor,
the reasonable fees of and expenses incurred by the person in
performing his or her functions are to be fixed by a registrar of
the Supreme Court and paid by the State.
(4) The Criminal Procedure Act 2004 sections 31 and 32, with any
30 necessary changes, apply respectively to and in respect of any
warrant or summons issued by a court dealing with an appeal.
page 30
Criminal Appeals Bill 2004
Provisions applicable to any appeal Part 4
s. 41
41. Sentencing or re-sentencing on appeal
(1) If under this Act an appeal court decides to impose a sentence, it
may do one or more of the following --
(a) order that the sentence is to be taken to have taken effect
5 on a date before the date of the order;
(b) order that the sentence is to take effect on a date on or
after the date of the order.
(2) If under this Act an appeal court varies or sets aside a sentence
("sentence A"), it may vary any other sentence --
10 (a) that was imposed at or after the time when sentence A
was imposed; and
(b) that took into account sentence A.
(3) If under this Act an appeal court decides to vary a sentence, it
may do one or more of the following --
15 (a) vary the sentence as imposed;
(b) impose a different sentence involving a different
sentencing option;
(c) order that the sentence is to be taken to have taken effect
on a date before the date of the order;
20 (d) order that the sentence is to take effect on a date on or
after the date of the order.
(4) In exercising a power under this Act to vary a sentence an
appeal court may consider any matter relevant to the sentence
that has occurred between when the sentence was imposed and
25 when the appeal was heard.
(5) If an appeal court decides to impose a sentence, or vary a
sentence already imposed, on a party, it may do so in the
absence of the party, despite the Sentencing Act 1995
section 14.
30 (6) If an appeal court, in deciding an appeal in relation to a person
sentenced to imprisonment --
(a) sets aside the sentence;
page 31
Criminal Appeals Bill 2004
Part 4 Provisions applicable to any appeal
s. 42
(b) varies the sentence, or amends the conviction in respect
of which the sentence was imposed; or
(c) confirms the sentence,
the court must send a memorandum setting out the result of the
5 appeal to the chief executive officer (as defined in the Prisons
Act 1981).
(7) If subsection (6)(a) applies and the court does not impose
another sentence of imprisonment on the person, the person
must be released as soon as practicable after the memorandum
10 is received by the chief executive officer, unless the person is
required to be in custody for some other matter.
(8) If subsection (6)(b) applies, the warrant for the imprisonment of
the person previously issued and in force has effect as if it were
amended in accordance with the memorandum.
15 (9) The memorandum is to be put in the records of the department
(as defined in the Prisons Act 1981) and is evidence of the
matters stated in it.
(10) This section is in addition to and does not affect the operation of
the Sentencing Act 1995 except as expressly stated.
20 42. Result of appeal to be given to other court
(1) When an appeal is concluded, the appeal court must send a
memorandum setting out the result of the appeal to the lower
court.
(2) The memorandum is to be put in the records of the lower court
25 and is evidence of the matters stated in it.
43. Party in custody, entitlement to be present at appeal
(1) In this section --
"video link" means facilities, including closed circuit
television, that enable, at the same time, a court at one
30 place to see and hear a person at another place and vice
versa.
page 32
Criminal Appeals Bill 2004
Provisions applicable to any appeal Part 4
s. 44
(2) A party to an appeal who is in custody and who is
self-represented is entitled to be present at any proceedings
relating to the appeal.
(3) A party to an appeal who is in custody and who is represented
5 by a lawyer --
(a) is entitled to be present at the actual hearing of the
appeal; but
(b) is not entitled to appear at any other proceedings on the
appeal,
10 unless the appeal court orders otherwise.
(4) If a party to an appeal who is in custody is entitled and wants to
be present at proceedings on the appeal, the appeal court must
make any necessary orders to ensure the party appears before
the court in person or by means of a video link.
15 (5) If a party to an appeal conducts himself or herself in a manner
that makes it impracticable to continue proceedings in his or her
presence, the appeal court may order the party to be removed
and the proceedings to proceed in the accused's absence or by
means of a video link.
20 44. Appellant in custody, treatment of
If a convicted appellant --
(a) is in custody pending the conclusion of an appeal
commenced by him or her; and
(b) requests the chief executive officer (within the meaning
25 of the Prisons Act 1981) to be treated as if he or she was
a prisoner on remand,
he or she is to be treated as such, even if he or she is also in
custody serving a sentence in relation to a conviction neither of
which is the subject of an appeal.
page 33
Criminal Appeals Bill 2004
Part 4 Provisions applicable to any appeal
s. 45
45. Exhibits
(1) If an appeal court orders a lower court to deal with a case again,
the appeal court must return each exhibit received from the
lower court to it with orders to ensure the exhibits are kept by it
5 until the last to happen of the events referred to in
subsection (2).
(2) Unless subsection (1) applies, an appeal court must retain each
exhibit received from another court in relation to an appeal
until --
10 (a) the time for appealing against a decision made on the
appeal has elapsed; or
(b) any appeal against a decision made on the appeal has
concluded,
whichever happens last, and then return it to the lower court.
15 (3) Despite subsection (2), an appeal court --
(a) may dispose of an exhibit that it considers is dangerous
to retain; or
(b) may release an exhibit to a person who is entitled to
custody of it if the court considers that --
20 (i) it is dangerous, impracticable or inconvenient for
it to be retained under this section; or
(ii) it is necessary for that person to have the use of
the exhibit.
(4) An appeal court that under subsection (3)(b) releases an exhibit
25 to a person may require the person, as a condition of being
given the exhibit, to give a written undertaking to the court as to
the care, maintenance and custody of the exhibit and its
re-delivery to the court.
(5) A person who, without a reasonable excuse, fails to carry out
30 such an undertaking commits an offence.
Penalty: A fine of $12 000 or imprisonment for 12 months.
page 34
Criminal Appeals Bill 2004
Provisions applicable to any appeal Part 4
s. 45
(6) If under subsection (1) or (2) an exhibit is returned to a lower
court, then, subject to any order made under subsection (1) --
(a) the Criminal Procedure Act 2004 section 170 applies to
the exhibit, if further proceedings in the lower court are
5 required as a result of the appeal; or
(b) if no such further proceedings are required, the lower
court may release the exhibit to a person who in the
court's opinion is entitled to custody of it or may require
the party who tendered it in evidence to collect it.
page 35
Criminal Appeals Bill 2004
Part 5 Referrals of questions of law to the Court of Appeal
s. 46
Part 5 -- Referrals of questions of law to the
Court of Appeal
46. Referrals by superior courts
(1) A referral of a question of law to the Court of Appeal by a
5 superior court under the Criminal Procedure Act 2004 must be
made --
(a) with a statement of the circumstances that gave rise to
the question of law; and
(b) in accordance with rules of court.
10 (2) Each party to the prosecution in which the question arose is
entitled to be heard by the Court of Appeal on the referred
question.
(3) If it appears that a person referred to in subsection (2) will not
be making submissions to the Court of Appeal, the Attorney
15 General may instruct a lawyer to make submissions to the court
on behalf of the person.
(4) The Court of Appeal must consider the referred question and
give its judgment on it.
47. Referrals by Attorney General
20 (1) In this section --
"superior court" means the Supreme Court, or the District
Court, or the Children's Court when constituted so as to
consist of or include a judge, but not the Court of Appeal.
(2) The Attorney General may refer to the Court of Appeal any
25 question of law that was decided by a superior court when
dealing with a charge of an indictable offence.
(3) The referral must be made --
(a) within 60 days after the date of the superior court's final
judgment on the charge;
page 36
Criminal Appeals Bill 2004
Referrals of questions of law to the Court of Appeal Part 5
s. 48
(b) with a statement of the circumstances that gave rise to
the question of law; and
(c) in accordance with rules of court.
(4) A person who was charged with the offence or who is affected
5 by the superior court's decision is entitled to be heard by the
Court of Appeal on the question referred and the person's
reasonable costs of being legally represented in the Court of
Appeal are to be paid by the State.
(5) If it appears that a person referred to in subsection (4) will not
10 be making submissions to the Court of Appeal, the Attorney
General must instruct a lawyer to make submissions to the court
on behalf of the person.
(6) When a referral is made to it under this section, the Court of
Appeal --
15 (a) may require the Attorney General to provide any
information it considers is necessary to decide the
question of law; and
(b) must consider the question referred and give its
judgment on it.
20 (7) The judgment of the Court of Appeal on a question of law
referred to it under this section does not affect or invalidate any
verdict or decision in the superior court on the charge.
48. Referrals, general provisions about
(1) This section applies if a question of law is referred to the Court
25 of Appeal under the Criminal Procedure Act 2004 or under
section 47(2).
(2) For the purpose of considering and deciding the referred
question, the Court of Appeal may exercise any power in
section 40.
30 (3) A person must not publish --
(a) any report of such a referral; or
page 37
Criminal Appeals Bill 2004
Part 5 Referrals of questions of law to the Court of Appeal
s. 48
(b) any report of proceedings on the referral,
that discloses the name or identity of a person charged in the
indictment or affected by the decision of the superior court.
(4) A person who contravenes subsection (3) commits an offence.
5 Penalty:
(a) for an individual, a fine of $12 000 or imprisonment
for 12 months;
(b) for a corporation, a fine of $60 000.
page 38
Criminal Appeals Bill 2004
Miscellaneous Part 6
s. 49
Part 6 -- Miscellaneous
49. Sentence may be varied etc. in specific cases
If --
(a) a sentence imposed on a person ("sentence A") ceases
5 to have effect other than as a result of --
(i) it being set aside in an appeal under this Act; or
(ii) the conviction for which it was imposed being
set aside in an appeal under this Act;
and
10 (b) at the time when sentence A ceases to have effect the
person is serving or has yet to serve another sentence
("sentence B") imposed when or after sentence A was
imposed,
the Court of Appeal, on the application of the Attorney
15 General --
(c) may set aside sentence B and impose a new sentence
instead; or
(d) may vary sentence B.
50. Rules of court
20 (1) This section is in addition to and does not affect the operation of
the Supreme Court Act 1935 section 167.
(2) The Supreme Court may make rules of court prescribing any
matter that is required or permitted by this Act to be prescribed,
or that is necessary or convenient to be prescribed for giving
25 effect to the purposes of this Act.
(3) Without limiting subsection (2), rules of court may --
(a) regulate the commencement and conduct of proceedings
under this Act;
page 39
Criminal Appeals Bill 2004
Part 6 Miscellaneous
s. 50
(b) provide for extending or shortening, with or without
conditions, the time allowed under this Act or the rules
of court for doing any act;
(c) provide for a proceeding under this Act to be dismissed
5 without a hearing of it if the person who commenced it
does not conduct it in accordance with the rules of court
or orders made by the court;
(d) provide for the re-instatement of a proceeding under this
Act that has been dismissed without a hearing of it;
10 (e) allow or require a party to a proceeding under this Act to
present the party's case in writing instead of or in
addition to doing so orally;
(f) provide for the discontinuance of proceedings under this
Act;
15 (g) provide for the taxation of costs ordered to be paid in
appeals under Part 2;
(h) confer on a master or registrar of the Supreme Court,
either generally or in particular cases, and under such
circumstances and on such conditions as the rules
20 specify, such of the jurisdiction of the court under this
Act as the rules specify.
page 40
Criminal Appeals Bill 2004
Miscellaneous Part 6
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
appeal ......................................................................................................... 4(2)
appeal court.................................................................................................... 36
appellant ..................................................................................................... 4(2)
concluded.................................................................................................... 4(2)
Court of Appeal Registrar............................................................................ 4(2)
court of summary jurisdiction ...................................................................... 4(2)
decision............................................................................................................ 6
factual finding ............................................................................................32(2)
lower court..................................................................................................... 36
offence A ........................................................................................ 30(5), 32(2)
offence B............................................................................... 30(5), 32(6), 32(7)
offender ......................................................................................................... 22
rules of court ............................................................................................... 4(2)
section 27 finding.......................................................................................32(2)
sentence A............................................................................................41(2), 49
sentence B...................................................................................................... 49
superior court .................................................................................... 4(2), 47(1)
Supreme Court .........................................................................................4(2), 6
trial court ....................................................................................................... 22
video link...................................................................................................43(1)
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