Western Australian Current Acts

CRIMINAL PROCEDURE ACT 2004 - SECT 72

72 .         Dealing with application to set aside

        (1)         If an application made under section 71(1) is made within 21 days after the date of the decision to which it relates, the court, without hearing the parties, may grant the application if it is satisfied that the grounds of the application are made out by the application and any supporting evidence.

        (2)         If an application made under section 71(2) —

            (a)         is made within 21 days after the date of the decision to which it relates; and

            (b)         is not made by an accused who is in custody and who seeks to be released on bail until the hearing at which the charge is dealt with again,

                the court, without hearing the parties, may grant the application if it is satisfied that the grounds of the application are made out by the application and any supporting evidence.

        (3)         If an application is made under section 71(3), then irrespective of whether the associated application made under section 71(2) was made within 21 days after the date of the decision to which it relates or not, the court, without hearing the parties, may grant the application if it is satisfied that there is a reasonable prospect of the application made under section 71(2) succeeding.

        (4)         If an application made under section 71(1), (2) or (3) is not granted, respectively, under subsection (1), (2) or (3) of this section, the court must —

            (a)         as the case requires, set a date for the hearing of the application made under section 71(1) or (2); and

            (b)         set a date for the hearing of the application made under section 71(3), if any, which may be a date before the date set under paragraph (a); and

            (c)         issue an approved notice to the parties advising them of the hearing date or dates, as the case requires.

        (5)         At the hearing of an application made under section 71(1) or (2) the court may grant the application if it is satisfied that it is in the interests of justice to do so.

        (6)         At the hearing of an application made under section 71(3) the court may grant the application if the court is satisfied —

            (a)         that there is a reasonable prospect of the application made under section 71(2) succeeding; and

            (b)         that it is in the interests of justice to do so.

        (7)         The court dealing with an application made under section 71 need not be constituted by the same person or persons who constituted the court that made the decision to which the application relates.