Victorian Numbered Acts Victorian Numbered ActsAfter Part 6.3 of the Criminal Procedure Act 2009 insert —
(1) A person convicted of an indictable offence by an originating court who—
(a) has exhausted the person's right to appeal against conviction under Division 1 of Part 6.3; or
(b) has previously appealed under this Part but leave to appeal was not granted or the appeal was dismissed, in whole or in part—
may appeal to the Court of Appeal against the conviction if the Court of Appeal gives the person leave to appeal.
Note
See the definition of originating court in section 3.
(2) An appeal under subsection (1) may also include an appeal against a conviction for a related summary offence.
(1) An application for leave to appeal under section 326A is commenced by filing a notice of application for leave to appeal in accordance with the rules of court.
(2) The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.
(1) The Court of Appeal may grant leave to appeal under section 326A if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
(2) The Court of Appeal may grant leave to appeal under section 326A against a conviction for a related summary offence only if it grants leave to appeal under subsection (1) in relation to the indictable offence.
(3) In this section, evidence relating to an offence of which a person is convicted 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) either—
(A) it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B) it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
(4) Evidence that would be admissible on a second or subsequent appeal is not precluded from being fresh or compelling only because it would not have been admissible in the earlier trial of the offence that resulted in the conviction.
(1) On an appeal under section 326A, the Court of Appeal must allow the appeal against conviction if it is satisfied that there has been a substantial miscarriage of justice.
(2) In any other case, the Court of Appeal must dismiss an appeal under section 326A.
(1) If the Court of Appeal allows an appeal under section 326A, it must set aside the conviction of the offence ( offence A ) and must—
(a) order a new trial of offence A; or
(b) enter a judgment of acquittal of offence A; or
(c) if—
(i) the appellant could have been found guilty of some other offence ( offence B ) instead of offence A; and
(ii) the court is satisfied that the jury or, in the case of a plea of guilty to offence A, the trial judge must have been satisfied of facts that prove the appellant was guilty of offence B—
enter a judgment of conviction of 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 appellant could have been found guilty of some other offence ( offence B ) instead of offence A and the court is not satisfied as required by paragraph (c)(ii), order a new trial for offence B; or
(e) if the court is satisfied that the appellant should have been found not guilty of offence A because of mental impairment, enter a finding of not guilty because of mental impairment and make an order or declaration under section 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ; or
(f) if the appellant 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 of facts that prove the appellant did the acts or made the omissions that constitute offence B; and
(ii) that the appellant should have been found not guilty of offence B because of mental impairment—
enter a finding of not guilty of offence B because of mental impairment and make an order or declaration under section 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 .
(2) If the Court of Appeal orders a new trial, the court must order that the appellant attend on a specified date before the court in which the new trial will be conducted.
Note
Section 326K enables the Court of Appeal to remand the appellant in custody or grant bail pending a new trial.
(3) If the Court of Appeal sets aside the conviction of offence A, it may vary a sentence that—
(a) was imposed for an offence other than offence A at or after the time when the appellant was sentenced for offence A; and
(b) took into account the sentence for offence A.
(4) A power of the Court of Appeal under this section to impose a sentence in substitution for the sentence imposed by the originating court may still be exercised even if the sentence imposed by the originating court is an aggregate sentence of imprisonment.
(5) If at the conclusion of an appeal the appellant remains convicted of more than one offence, the Court of Appeal may either—
(a) impose a separate sentence in respect of each offence; or
(b) impose an aggregate sentence of imprisonment in respect of all offences or any 2 or more offences.
(1) If a notice of application for leave to appeal is filed under section 326B, the Court of Appeal may stay a sentence if satisfied that it is in the interests of justice to do so.
(2) A prisoner within the meaning of the Corrections Act 1986 who applies for leave to appeal to the Court of Appeal under this Part may apply to the Court of Appeal to be granted bail.
(3) On an application under subsection (2), the Court of Appeal may grant the prisoner bail pending the appeal.
An appeal under this Part may be abandoned in accordance with the rules of court.
(1) The Court of Appeal constituted by a single Judge of Appeal may exercise the following powers in this Part—
(a) to give leave to appeal;
(b) to grant the appellant bail;
(c) to order stays of sentence.
(2) If the Court of Appeal constituted by a single Judge of Appeal refuses an application to exercise a power referred to in subsection (1) in relation to any ground of appeal, the applicant is entitled to have the application determined by the Court of Appeal constituted by 2 or more Judges of Appeal.
Sections 316 to 320 and 326 apply with any necessary modification to a proceeding under this Part.
The Court of Appeal may impose a sentence on a person under this Part even though the person does not attend the hearing of an appeal or an application to the Court of Appeal.
Note
The Court of Appeal cannot impose a sentence that requires the consent of the person, for example a community correction order, in the absence of the person.
If on an appeal under this Part the Court of Appeal orders a new trial, the Court of Appeal may remand the appellant in custody or grant the appellant bail pending the commencement of the new trial.
Note
Section 326E(2) requires the Court of Appeal to order that the appellant attend on a specified date for the new trial.
For the purposes of this Part, the Court of Appeal may issue any warrant necessary for enforcing the orders of the court.
(1) On an appeal under this Part, the Court of Appeal may set aside or vary an ancillary order, if the court is satisfied that it is in the interests of justice to do so.
(2) In this section—
"ancillary order" means an order (other than the order that is the subject of the appeal) made by the originating court in the proceeding or by the Court of Appeal on an earlier appeal.".