STATUTES AMENDMENT (APPEALS) BILL 2013

(2) If a convicted person is granted permission to appeal under subsection (1)(a)(iii), the Director of Public Prosecutions may appeal under that subparagraph without the need to obtain the permission of the Full Court.

5—Insertion of section 353A

After section 353 insert:

353A—Second or subsequent appeals

(1) The Full Court may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.

(2) A convicted person may only appeal under this section with the permission of the Full Court.

(3) The Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.

(4) If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.

(5) If the Full Court orders a new trial under subsection (4), the Court—

(a) may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but

(b) may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.

(6) For the purposes of subsection (1), evidence relating to an offence is—

(a) fresh if—

(i) it was not adduced at the trial of the offence; and

(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and

(b) compelling if—

(i) it is reliable; and

(ii) it is substantial; and

(iii) it is highly probative in the context of the issues in dispute at the trial of the offence.

(7) Evidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction.

6—Amendment of section 357—Appeal to Full Court

Section 357—after subsection (2) insert:

(3) The Chief Justice may determine that the Full Court is to be constituted of only 2 judges for the purposes of any appeal to the Full Court under this Act.

7—Amendment of section 369—References by Attorney-General

Section 369—after its present contents (now to be designated as subsection (1)) insert:

(2) If a full pardon is granted to a convicted person in the exercise of Her Majesty's mercy in relation to a conviction of an offence, the Attorney-General may refer the matter to the Full Court and the Full Court may, if it thinks fit, quash the conviction.

Part 3—Amendment of Magistrates Court Act 1991

8—Insertion of section 43A

After section 43 insert:

43A—Second or subsequent appeals

(1) A Court to which a particular appeal against conviction lies under section 42 (the appeal court) may hear a second or subsequent appeal against conviction if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.

(2) A convicted person may only appeal under this section with the permission of the appeal court.

(3) The appeal court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.

(4) If an appeal against conviction is allowed under this section, the court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial by the Magistrates Court.

(5) If the appeal court orders a new trial under subsection (4), the court—

(a) may make such other orders as the court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but

(b) may not make any order directing the Magistrates Court to convict or sentence the person.

(6) For the purposes of subsection (1), evidence relating to an offence is—

(a) fresh if—

(i) it was not adduced at the trial of the offence; and

(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and

(b) compelling if—

(i) it is reliable; and

(ii) it is substantial; and

(iii) it is highly probative in the context of the issues in dispute at the trial of the offence.

Part 4—Amendment of Supreme Court Act 1935

9—Amendment of section 5—Interpretation

Section 5(1), definition of Full Court, (b)—delete paragraph (b) and substitute:

(b) not less than 2 judges if—

(i) 3 judges are not available to sit in the Full Court; or

(ii) the Chief Justice has made a determination under section 357(3) of the Criminal Law Consolidation Act 1935;

Schedule 1—Transitional provision

The amendments effected by this Act apply in relation to appeals instituted after the commencement of this Act, regardless of whether the offence to which the appeal relates was committed, or allegedly committed, before or after the commencement of this Act.

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