Western Australian Current Acts Western Australian Current Acts (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.
(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; or
(b) the
conviction should be set aside because of a wrong decision on a question of
law by the judge; or
(c)
there was a miscarriage of justice.
(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) 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; or
(b)
enter a judgment of acquittal of offence A; or
(c) if
—
(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 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; or
(d) if
the court is satisfied that the offender should have been found not guilty of
offence A on account of mental impairment — enter a judgment of
acquittal of offence A on account of mental impairment and deal with the
offender under the Criminal Law (Mental Impairment) Act 2023 ; 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 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
(ii)
that the offender should have been found not guilty of
offence B on account of mental impairment,
enter a judgment of
acquittal of offence B on account of mental impairment and deal with the
offender under the Criminal Law (Mental Impairment) Act 2023 .
(6) If the Court of
Appeal enters a judgment of acquittal of offence A or enters a judgment of
conviction of offence B, it 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.
[Section 30 amended: No. 10 of 2023 s. 307 and
313.]