Western Australian Current Acts Western Australian Current Acts (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 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 —
(a) a
finding that the accused did the acts or made the omissions that constitute
the offence (the factual finding ); or
(b) a
finding that the accused was not criminally responsible for those acts or
omissions on account of unsoundness of mind (the section 27 finding ); or
(c) both
the factual finding and the section 27 finding,
as the case requires.
(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 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; or
(b) the
finding 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.
(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.
(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; or
(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 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 deal with the accused accordingly.
(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 —
(a)
order a trial or a new trial; or
(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 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
acquittal of offence B on account of unsoundness of mind and deal with the
offender under the Criminal Law (Mentally Impaired Accused) Act 1996 .
(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 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 and deal with the accused accordingly; or
(b)
otherwise, order a trial or a new trial.
(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 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.