An Act to restate the law with respect to appeals and other forms of review in relation to criminal proceedings; and for other purposes.
long title: Am 2006 No 69, Sch 2.1 [1].
Part 1 Preliminary
1 Name of Act
This Act is the Crimes (Appeal and Review) Act 2001.s 1: Am 2006 No 69, Sch 2.1 [2].
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act:acquittal includes:(a) an acquittal in appeal proceedings in respect of an offence, and(b) an acquittal at the direction of a court.appeal court means the court to which an appeal or application for leave to appeal may be made under Part 3, 4 or 5.appellant, in relation to proceedings on an application for leave to appeal, includes the applicant in those proceedings.defendant, in relation to proceedings from which an appeal or application for leave to appeal is made, means the person against whom those proceedings have been taken.environmental offence means an offence for which summary proceedings may be taken before the Land and Environment Court, whether or not summary proceedings for such an offence may also be taken before any other court, and includes any offence arising under the environment protection legislation within the meaning of the Protection of the Environment Administration Act 1991.exercise a function includes perform a duty.fresh evidence, in relation to appeal proceedings, means evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen.function includes a power, authority or duty.Local Court includes:(a) a Children’s Court constituted under the Children’s Court Act 1987, and(b), (c) (Repealed)(d) any court that is constituted by a Magistrate and that exercises criminal jurisdiction, and(e) any Magistrate or court that exercises any function or jurisdiction under Chapter 3 (Part 3 excepted), Chapter 4 (Part 5 excepted) or Chapter 5 of the Criminal Procedure Act 1986.original Local Court, in relation to proceedings under this Act, means the Local Court that made or imposed the conviction, sentence or order from which those proceedings arise.prosecutor, in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings.means:(a) the Crown, or(b) an authority within the meaning of the Public Finance and Audit Act 1983, or(c) an officer or employee of such an authority acting in the course of his or her employment.sentence means:(a) any order made by a Local Court in respect of a person as a consequence of its having convicted the person of an offence, including:(i) any sentence of imprisonment (including any sentence of imprisonment the subject of a periodic detention order or home detention order), and(ii) any community service order, good behaviour bond or fine, and(iii) any order suspending execution of a sentence of imprisonment under section 12 of the Crimes (Sentencing Procedure) Act 1999, and(iiia) any non-association order or place restriction order under section 17A of the Crimes (Sentencing Procedure) Act 1999, and(iv) any direction for compensation under section 71 or 77B of the Victims Support and Rehabilitation Act 1996, and(iva) any child protection registration order under section 3D of the Child Protection (Offenders Registration) Act 2000, and(v) any order or direction with respect to restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, or(b) any order made by a Local Court in respect of a person under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding the person guilty of an offence, or(ba) any order made by a Local Court revoking a good behaviour bond and any order made as a consequence of the revocation of the good behaviour bond, or(c) any order for restitution made by a Local Court in respect of a person under section 43 of the Criminal Procedure Act 1986, or(d) any order for costs made by a Magistrate against a person in connection with committal proceedings taken against the person, or(e) any order for costs made by a Local Court against a person in connection with summary proceedings taken against the person, or(f) a banning order made by a Local Court under the Sporting Venues (Offenders Banning Orders) Act 2005.(2) In the case of an application or appeal in relation to a decision of the Children’s Court under Part 3 of the Children (Criminal Proceedings) Act 1987:(a) a reference in this Act to a conviction includes a reference to a finding of guilt under that Act, and(b) a reference in this Act to a sentence includes a reference to an order made on the finding of guilt under that Act.(3) In this Act, a reference to varying a sentence includes:(a) a reference to varying the severity of the sentence, and(b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature.(3A) Without limiting subsection (3), a power conferred on an appeal court under this Act to vary a sentence includes the power to make an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 and, for that purpose, to set aside a conviction made by the original Local Court (without setting aside the finding of guilt on which the conviction is based) to enable the order to be made.(4) Notes included in the text of this Act do not form part of this Act.s 3: Am 2002 No 100, Sch 4.1; 2003 No 27, Sch 5; 2003 No 71, Sch 1 [1]; 2004 No 85, Sch 2.1; 2005 No 67, Sch 2.1; 2006 No 69, Sch 1 [1]; 2006 No 107, Sch 1.8 [1]; 2007 No 92, Sch 4.4; 2008 No 107, Sch 29.3; 2009 No 4, Sch 1 [1].
Part 2 Local Court review of Local Court decisions
4 Applications to Local Court
(1) An application for annulment of a conviction or sentence made or imposed by a Local Court may be made to the same Local Court:(a) by the defendant, orbut may be made by the defendant only if the defendant was not in appearance before the Local Court when the conviction or sentence was made or imposed.(b) by the prosecutor,(2) An application under this section must be made:(a) within 2 years after the relevant conviction or sentence is made or imposed, or(b) if an application has been made to the Minister under section 5 within that 2-year period, within 2 years after the application under section 5 has been disposed of under this Part.(3) Except by leave of the Local Court, a person may not make more than one application under this section in relation to the same matter.(4) An application must be in writing, and must be lodged with a registrar of a Local Court.(5) If an application is lodged with a registrar of a Local Court other than the original Local Court, the registrar with whom the application is lodged must forward the application to the registrar of the original Local Court.
5 Applications to Minister
(1) An application for annulment of a conviction or sentence made or imposed by a Local Court may be made to the Minister by any person.(1A) An application under this section may be made at any time after the relevant conviction or sentence is made or imposed.(2) If satisfied that a question or doubt exists:(a) as to the defendant’s guilt, orthe Minister may refer the application to the original Local Court.(b) as to the defendant’s liability for a penalty,s 5: Am 2003 No 40, Sch 1.9 [1].
6 Notice of applications
(1) As soon as practicable after receiving an application for annulment, the registrar of the original Local Court must notify the applicant and other interested parties of the date, time and place fixed for dealing with the application.(2) A Local Court may deal with an application for annulment, despite any omission or error in the notice or despite the notice having not been served on an interested party, if it is satisfied that the party:(a) is aware of the date, time and place fixed for dealing with the application and has not been prejudiced as a consequence of the notice having not been served, or(b) is avoiding service of the notice or cannot, after reasonable search and inquiry, be found.
7 Procedure for dealing with applications
(1) A Local Court may deal with an application for annulment in the presence or absence of the parties and in open court or in private.(2) A Local Court dealing with an application for annulment may stay the execution of the sentence concerned subject to such terms and conditions as it thinks fit.(3) The rules of court made under the Local Courts Act 1982 may make provision for or with respect to procedure and evidence for the purposes of the hearing of applications for annulment.
8 Circumstances in which applications to be granted
(1) A Local Court must grant an application for annulment made by the prosecutor if it is satisfied that, having regard to the circumstances of the case, there is just cause for doing so.(2) A Local Court must grant an application for annulment made by the defendant if it is satisfied:(a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or(b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or(c) that, having regard to the circumstances of the case, it is in the interests of justice to do so.
9 Procedure after decision on application
(1) A Local Court must notify each of the interested parties of its decision as to an application for annulment.(2) If its decision is to annul the relevant conviction or sentence, the Local Court:(a) must deal with the original matter afresh (either immediately or at a later date), and(b) unless it does so immediately, must notify each of the interested parties of the date, time and place fixed for dealing with the original matter.(3) The Local Court is to deal with the original matter as if no conviction or sentence had been previously made or imposed.(4) The original matter need not be dealt with by the Magistrate who ordered the annulment of the conviction or sentence, but may be dealt with by any Magistrate, including the Magistrate by whom the matter was dealt with in the original Local Court proceedings.(5) In this section, original matter, in relation to a conviction or sentence that has been annulled, means the matter the subject of the proceedings from which the conviction or sentence arose.
10 Effect of annulment of conviction or sentence
(1) On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed.(2) The annulment of a conviction for an offence that has been heard together with another offence for which a conviction has been made does not prejudice the conviction for the other offence.(3) If a fine is annulled, any amount paid towards the fine is repayable to the person by whom it was paid.(4) The Consolidated Fund is appropriated to the extent necessary to give effect to subsection (3).
10A Part applies to findings of guilt
(1) An application for annulment under this Part may be made in relation to a finding of guilt made by a Local Court, whether or not the Court proceeds to conviction, and this Part applies in respect of any such application accordingly.(2) For that purpose:(a) a reference in this Part to a conviction includes a reference to a finding of guilt, and(b) a reference in this Part to a sentence includes any order made under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding a person guilty of an offence.s 10A: Ins 2006 No 107, Sch 1.8 [2].
Part 3 Appeals from Local Court to District Court
Division 1 Appeals by defendants
Subdivision 1 Making of appeals
11 Appeals as of right
(1) Any person who has been convicted or sentenced by a Local Court may appeal to the District Court against the conviction or sentence (or both).(1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person’s absence or following the person’s plea of guilty.(1B) Any person whose application under section 4 for annulment of a sentence has been refused by the Local Court may appeal to the District Court against the sentence.(2) An appeal must be made:(a) within 28 days after sentence is imposed, orbut (in the case of an appeal against a conviction) may not be made before sentence is imposed.(b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part,s 11: Am 2003 No 82, Sch 1.11 [1]; 2009 No 4, Sch 1 [2] [3].
11A Appeals as of right against Local Court’s refusal of application for annulment of conviction
(1) Any defendant whose application under section 4 for annulment of a conviction has been refused by the Local Court may appeal to the District Court against the refusal.(2) An appeal under this section must be made within 28 days after the Local Court notifies the defendant of its refusal of the application.(3) Not more than one appeal may be made under this section in respect of any particular conviction.s 11A: Ins 2004 No 68, Sch 3 [1]. Am 2009 No 4, Sch 1 [4].
12 Appeals requiring leave
(1) Any person who has been convicted by a Local Court in the person’s absence or following the person’s plea of guilty may appeal to the District Court against the conviction, but only by leave of the District Court.(2) An application for leave to appeal may not be made in relation to a conviction in respect of which the defendant:(a) is entitled to make an application under section 4 but has not done so, or(b) has made an application under section 4 but the application has not been disposed of under Part 2.(3) An application for leave to appeal must be made:(a) within 28 days after (but not before) the sentence imposed after the relevant conviction is made, or(b) if an application for annulment of the conviction has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part.
13 Late applications for leave to appeal
(1) An appeal to the District Court may be made:(a) by any person by whom an appeal could be made under section 11, but for section 11 (2), and(a1) by any defendant by whom an appeal could be made under section 11A, but for section 11A (2), andbut only by leave of the District Court.(b) by any person by whom an application for leave to appeal could be made under section 12, but for section 12 (3),(2) An application for leave to appeal must be made within 3 months after the relevant conviction or sentence is made or imposed, or the relevant application under section 4 is refused, as the case may require.s 13: Am 2004 No 68, Sch 3 [2] [3].
14 Lodgment of appeals and applications for leave to appeal
(1) An appeal under section 11 or 11A is to be made by lodging a written notice of appeal with:(a) the registrar of any Local Court, or(b) the person in charge of the place where the appellant is in custody.(2) A notice of appeal must state the general grounds of appeal.(3) An application for leave to appeal under section 12 or 13 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with:(a) the registrar of any Local Court, or(b) the person in charge of the place where the appellant is in custody.(4) An application for leave to appeal must state the general grounds of the application and, in the case of an application under section 13, must state the reasons why an appeal or application for leave to appeal was not made within the time allowed by section 11, 11A or 12, as the case may be.(5) On the granting of leave to appeal, an appeal is taken to have been made in accordance with the written notice of appeal referred to in subsection (3).s 14: Am 2004 No 68, Sch 3 [4] [5].
15 Documents to be forwarded to prosecutor and relevant court registrars
(1) The person with whom a notice of appeal or application for leave to appeal is lodged must immediately forward a copy of it to:(a) the prosecutor in the original Local Court proceedings, and(b) the registrar of the original Local Court, if the person is not that registrar, and(c) the Director of Public Prosecutions.(2) As soon as practicable after receiving a notice of appeal or application for leave to appeal, the registrar of the original Local Court must send the relevant papers (including a copy of any relevant order or conviction made by the Local Court) to a registrar of the District Court.
Subdivision 2 Determination of appeals
16 Determination of applications for leave to appeal
(1) The District Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal.(2) Leave to appeal must not be granted in relation to an application under section 13 unless the District Court is satisfied that it is in the interests of justice that leave be granted.(3) If the District Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just.(4) If the District Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings.
16A Determination of appeals against Local Court’s refusal of application for annulment of conviction
(1) The District Court may determine an application under section 11A by dismissing the application or by granting it.(2) Pending the determination of the application, the District Court may stay the execution of any sentence relating to the conviction concerned subject to such terms and conditions as it thinks fit.(3) If the District Court grants the application, the District Court must remit the matter to the Local Court.(4) The Local Court is to deal under section 9 with any matter remitted to it under this section as if the application under section 4 in respect of the matter had been granted by the Local Court.s 16A: Ins 2004 No 68, Sch 3 [6]. Am 2009 No 4, Sch 1 [5].
17 Appeals against sentence to be by way of rehearing of evidence
An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.
18 Appeals against conviction to be by way of rehearing on the evidence
(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.(3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.s 18: Am 2009 No 4, Sch 1 [6] [7].
19 Circumstances in which evidence to be given in person
(1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied:(a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or(b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.(2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party’s intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct.(3) If an application for such a direction is refused, the District Court must give reasons for the refusal.(4) A direction may be withdrawn only on the application, or with the consent, of the appellant.(5) The regulations may make provision for or with respect to the determination of special or substantial reasons for the purposes of subsection (1).(6) Without limiting subsection (5), in determining whether special or substantial reasons exist, the District Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings.
20 Determination of appeals
(1) The District Court may determine an appeal against conviction:(a) by setting aside the conviction, or(b) by dismissing the appeal, or(c) in the case of an appeal made with leave under section 12 (1)—by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court.(2) The District Court may determine an appeal against sentence:(a) by setting aside the sentence, or(b) by varying the sentence, or(c) by dismissing the appeal.s 20: Am 2009 No 4, Sch 1 [8].
21 Notice of dismissal of appeal or application for leave to appeal
(1) If an appeal or application for leave to appeal is dismissed because of the appellant’s failure to appear, the registrar of the District Court for the proclaimed place (within the meaning of the District Court Act 1973) at which the appeal or application is dismissed must cause notice of that fact to be served on the appellant.(2) Such a notice must state the following:(a) that the District Court has dismissed the appeal or application,(b) that the appellant is entitled to apply for the setting aside of the order by which the order dismissing the appeal or application was made,(c) that any such application must be made within 12 months after the date on which the order dismissing the appeal or application was made.
22 Revocation of orders dismissing appeals and applications for leave to appeal
(1) An application may be made to the District Court for the setting aside of an order under section 21 that has dismissed an appeal or application for leave to appeal because of the appellant’s failure to appear (a dismissal order).(2) An application under this section must be made within 12 months after the date on which the dismissal order is made.(3) After hearing such an application, the District Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied:(a) that the appellant has shown sufficient cause for the failure to appear, and(b) that it is in the interests of justice that the appeal or application be heard.(4) Section 60 applies to any sentence in respect of which a dismissal order is set aside.(5) No action lies against any person for anything done or omitted to be done by the person in good faith, and without notice of the setting aside of a dismissal order, for the purpose of enforcing the conviction or sentence the subject of the appeal to which the order relates.
Division 2 Appeals by prosecutors
Subdivision 1 Making of appeals
23 Appeals as of right
(1) The Director of Public Prosecutions may appeal to the District Court against a sentence imposed on a person by a Local Court in any of the following proceedings:(a) proceedings for any indictable offence that has been dealt with summarily,(b) proceedings for any prescribed summary offence (within the meaning of the Director of Public Prosecutions Act 1986),(c) proceedings for any summary offence that has been prosecuted by or on behalf of the Director of Public Prosecutions.(2) The prosecutor may appeal to the District Court against:(a) any order for costs made by a Magistrate against the prosecutor in respect of committal proceedings taken by the prosecutor, or(b) any order for costs made by a Local Court against the prosecutor in respect of summary proceedings taken by the prosecutor.(3) An appeal must be made within 28 days after the relevant sentence is imposed.(4) Despite subsection (3), an appeal may be lodged more than 28 days after the relevant sentence is imposed if:(a) the sentence has been reduced on the defendant’s undertaking to assist law enforcement authorities (as referred to in section 23 of the Crimes (Sentencing Procedure) Act 1999), and(b) the defendant has failed, whether wholly or partly, to fulfil the undertaking.
24 Lodgment of appeals
(1) An appeal under section 23 is to be made by lodging a written notice of appeal with the registrar of any Local Court.(2) A notice of appeal must state the general grounds of appeal.
25 Documents to be forwarded to defendant and relevant court registrars
(1) The person with whom a notice of appeal is lodged must immediately forward a copy of it to:(a) the defendant in the original Local Court proceedings, and(b) the registrar of the original Local Court, if the person is not that registrar.(2) As soon as practicable after receiving a notice of appeal, the registrar of the original Local Court must send the relevant papers (including a copy of any relevant order or conviction made by the Local Court) to a registrar of the District Court.
Subdivision 2 Determination of appeals
26 Appeals against sentence to be by way of rehearing of evidence
(1) An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings, but only by leave of the District Court.(2) Leave to give fresh evidence may be granted to the Director of Public Prosecutions only in exceptional circumstances.
27 Determination of appeals
(1) The District Court may determine an appeal against sentence:(a) by setting aside the sentence, or(b) by varying the sentence, or(c) by dismissing the appeal.(2) The District Court may determine an appeal against an order referred to in section 23 (2):(a) by setting aside the order and making such other order as it thinks just, or(b) by dismissing the appeal.
Division 3 Miscellaneous
28 Miscellaneous powers
(1) Without limiting its other powers, the District Court may do any one or more of the following:(a) it may specify the proclaimed place (within the meaning of the District Court Act 1973) at which the hearing of an appeal or application for leave to appeal is to be heard or continued,(b) it may specify the sitting at which the hearing of an appeal or application for leave to appeal is to be heard or continued,(c) it may adjourn the hearing of an appeal or application for leave to appeal.(2) In determining an appeal, the District Court may exercise any function that the original Local Court could have exercised in the original Local Court proceedings.(3) Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.
29 Limits on appeals
(1) No appeal may be made to the District Court under this Part against a decision of a Local Court:(a) in relation to an environmental offence against which an appeal may be made under Part 4, or(b) that is or has previously been the subject of an appeal or application for leave to appeal to the District Court under this Part, or(c) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under Part 5.(2) Subsection (1) (c) does not prevent a person who has made an appeal or application for leave to appeal to the Supreme Court under Part 5 from making an appeal or application for leave to appeal to the District Court under this Part if:(a) the Supreme Court has remitted the matter on appeal to a Local Court for redetermination, and the Local Court has redetermined the matter, or(b) the Supreme Court has refused leave to appeal in relation to an appeal made on a ground of mixed law and fact.(3) No application to set aside or vary any conviction or sentence of a Local Court that could be the subject of an appeal under this Part may be made to the District Court (whether in its civil or criminal jurisdiction) except by way of an appeal under this Part.
30 Rules of court
Rules of court may be made under the District Court Act 1973 with respect to the jurisdiction conferred by this Part on the District Court.
Part 4 Appeals from Local Court to Land and Environment Court
Division 1 Appeals by defendants
Subdivision 1 Making of appeals
31 Appeals as of right
(1) Any person who has been convicted or sentenced by a Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.(1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person’s absence or following the person’s plea of guilty.(2) An appeal must be made:(a) within 28 days after sentence is imposed, orbut (in the case of an appeal against conviction) may not be made before sentence is imposed.(b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part,s 31: Am 2003 No 82, Sch 1.11 [2].
32 Appeals requiring leave
(1) Any person who has been convicted by a Local Court, in the person’s absence or following the person’s plea of guilty, with respect to an environmental offence may appeal to the Land and Environment Court against the conviction, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court.(2) Any person against whom:(a) an order has been made by a Magistrate in relation to the person in any committal proceedings with respect to an environmental offence, ormay appeal to the Land and Environment Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court.(b) an interlocutory order has been made by a Local Court in relation to the person in summary proceedings with respect to an environmental offence,(3) An application for leave to appeal under subsection (1) may not be made in relation to a conviction in respect of which the defendant:(a) is entitled to make an application under section 4 but has not done so, or(b) has made an application under section 4 but the application has not been disposed of under Part 2.(4) An application for leave to appeal must be made:(a) in the case of a conviction referred to in subsection (1):(i) within 28 days after sentence is imposed, orbut may not be made before sentence is imposed, or(ii) if an application for annulment of the conviction has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part,(b) in the case of an order referred to in subsection (2), within 28 days after the relevant order is made.
33 Late applications for leave to appeal
(1) An appeal to the Land and Environment Court may be made:(a) by any person by whom an appeal could be made under section 31, but for section 31 (2), andbut only by leave of the Land and Environment Court.(b) by any person by whom an application for leave to appeal could be made under section 32, but for section 32 (4),(2) An application for leave to appeal must be made within 3 months after the relevant conviction, sentence or order is made or imposed.
34 Lodgment of appeals and applications for leave to appeal
(1) An appeal under section 31 is to be made by lodging a written notice of appeal with:(a) the Registrar of the Land and Environment Court, or(b) the person in charge of the place where the appellant is in custody.(2) A notice of appeal must state the general grounds of appeal.(3) An application for leave to appeal under section 32 or 33 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with:(a) the Registrar of the Land and Environment Court, or(b) the person in charge of the place where the appellant is in custody.(4) An application for leave to appeal must state the general grounds of the application and, in the case of an application under section 33, must state the reasons why an appeal or an application for leave to appeal was not made within the time allowed by section 31 or 32, as the case may be.(5) On the granting of leave to appeal, an appeal is taken to have been made in accordance with the written notice of appeal referred to in subsection (3).s 34: Am 2009 No 4, Sch 1 [9].
35 Documents to be forwarded to prosecutor and relevant court registrars
(1) The person with whom a notice of appeal or application for leave to appeal is lodged must immediately forward a copy of it to:(a) the prosecutor in the original Local Court proceedings, and(b) the registrar of the original Local Court, if the person is not that registrar, and(c) the Director of Public Prosecutions.(2) As soon as practicable after receiving a notice of appeal or application for leave to appeal, the registrar of the original Local Court must send the relevant papers (including a copy of any relevant order or conviction made by the Local Court) to the registrar of the Land and Environment Court.
Subdivision 2 Determination of appeals
36 Determination of applications for leave to appeal
(1) The Land and Environment Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal.(2) Leave to appeal must not be granted in relation to an application under section 33 unless the Land and Environment Court is satisfied that it is in the interests of justice that leave be granted.(3) If the Land and Environment Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just.(4) If the Land and Environment Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings.
37 Appeals to be by way of rehearing on the evidence
(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38.(2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.(3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.s 37: Am 2009 No 4, Sch 1 [10] [11].
38 Circumstances in which evidence to be given in person
(1) The Land and Environment Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.(2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party’s intention to make such an application has been served on each other party to the proceedings within such period as the Land and Environment Court may direct.(3) If an application for such a direction is refused, the Land and Environment Court must give reasons for the refusal.(4) A direction may be withdrawn only on the application, or with the consent, of the appellant.(5) The regulations may make provision for or with respect to the determination of substantial reasons under subsection (1).(6) Without limiting subsection (5), in determining whether substantial reasons exist, the Land and Environment Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings.
39 Determination of appeals
(1) The Land and Environment Court may determine an appeal against conviction:(a) by setting aside the conviction, or(b) by dismissing the appeal, or(c) in the case of an appeal made with leave under section 32 (1)—by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court.(2) The Land and Environment Court may determine an appeal against sentence:(a) by setting aside the sentence, or(b) by varying the sentence, or(c) by dismissing the appeal.(3) The Land and Environment Court may determine an appeal against an order referred to in section 32 (2) (a) or (b):(a) by setting aside the order and making such other order as it thinks just, or(b) by dismissing the appeal.s 39: Am 2009 No 4, Sch 1 [12].
40 Notice of dismissal of appeal or application for leave to appeal
(1) If an appeal or application for leave to appeal is dismissed because of the appellant’s failure to appear, the registrar of the Land and Environment Court must cause notice of that fact to be served on the appellant.(2) Such a notice must state the following:(a) that the Land and Environment Court has dismissed the appeal or application,(b) that the appellant is entitled to apply for the setting aside of the order by which the order dismissing the appeal or application was made,(c) that such an application must be made within 12 months after the date on which the order dismissing the appeal or application was made.
41 Revocation of orders dismissing appeals and applications for leave to appeal
(1) An application may be made to the Land and Environment Court for the setting aside of an order under section 40 that has dismissed an appeal or application for leave to appeal because of the appellant’s failure to appear (a dismissal order).(2) An application under this section must be made within 12 months after the date on which the dismissal order is made.(3) After hearing such an application, the Land and Environment Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied:(a) that the appellant has shown sufficient cause for the failure to appear, and(b) that it is in the interests of justice that the appeal or application be heard.(4) Section 60 applies to any sentence in respect of which a dismissal order is set aside.(5) No action lies against any person for anything done or omitted to be done by the person in good faith, and without notice of the setting aside of a dismissal order, for the purpose of enforcing the conviction or sentence the subject of the appeal to which the order relates.
Division 2 Appeals by prosecutors
Subdivision 1 Making of appeals
42 Appeals as of right
(1) The Director of Public Prosecutions may appeal to the Land and Environment Court against a sentence imposed on a person by a Local Court in relation to an environmental offence for which proceedings have been prosecuted by or on behalf of a public authority (other than the Environment Protection Authority).(2) The Environment Protection Authority may appeal to the Land and Environment Court against a sentence imposed on a person by a Local Court in relation to an environmental offence for which proceedings have been prosecuted by or on behalf of the Environment Protection Authority.(2A) The prosecutor (other than the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against a sentence imposed by a Local Court in any summary proceedings in relation to an environmental offence, but only on a ground that involves a question of law alone.(2B) The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against:(a) an order made by a Local Court that stays any summary proceedings for the prosecution of an environmental offence, or(b) an order made by a Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence, orbut only on a ground that involves a question of law alone.(c) an order for costs made by a Local Court against the prosecutor in any summary proceedings with respect to an environmental offence,(3) An appeal must be made within 28 days after the relevant sentence is imposed.(4) Despite subsection (3), an appeal may be lodged more than 28 days after the relevant sentence is imposed if:(a) the sentence has been reduced on the defendant’s undertaking to assist law enforcement authorities (as referred to in section 23 of the Crimes (Sentencing Procedure) Act 1999), and(b) the defendant has failed, whether wholly or partly, to fulfil the undertaking.s 42: Am 2004 No 91, Sch 1.8.
43 Appeals requiring leave
(1) The Director of Public Prosecutions may appeal to the Land and Environment Court against:(a) an order that has been made by a Magistrate in relation to a person in any committal proceedings with respect to an environmental offence, orbeing an offence for which proceedings have been prosecuted by or on behalf of a public authority (other than the Environment Protection Authority), but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court.(b) an interlocutory order that has been made by a Local Court in relation to a person in summary proceedings with respect to an environmental offence,(1A) The Environment Protection Authority may appeal to the Land and Environment Court against:(a) an order that has been made by a Magistrate in relation to a person in any committal proceedings with respect to an environmental offence, orbeing an offence for which proceedings have been prosecuted by or on behalf of the Environment Protection Authority, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court.(b) an interlocutory order that has been made by a Local Court in relation to a person in summary proceedings with respect to an environmental offence,(2) An application for leave to appeal must be made within 28 days after the relevant order is made.s 43: Am 2003 No 40, Sch 1.9 [2] [3].
44 Lodgment of appeals and applications for leave to appeal
(1) An appeal under section 42 is to be made by lodging a written notice of appeal with the registrar of the Land and Environment Court.(2) A notice of appeal must state the general grounds of appeal.(3) An application for leave to appeal under section 43 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with the registrar of the Land and Environment Court.(4) An application for leave to appeal must state the general grounds of the application.s 44: Am 2009 No 4, Sch 1 [13].
45 Documents to be forwarded to defendant and relevant court registrars
(1) The person with whom a notice of appeal or application for leave to appeal is lodged must immediately forward a copy of it to:(a) the defendant in the original Local Court proceedings, and(b) the registrar of the original Local Court, if the person is not that registrar.(2) As soon as practicable after receiving a notice of appeal or application for leave to appeal, the registrar of the original Local Court must send the relevant papers (including a copy of any relevant order or conviction made by the Local Court) to the registrar of the Land and Environment Court.
Subdivision 2 Determination of appeals
46 Determination of applications for leave to appeal
(1) The Land and Environment Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal.(2) If the Land and Environment Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the Director of Public Prosecutions as it thinks just.(3) If the Land and Environment Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings.
47 Appeals against sentence to be by way of rehearing of evidence
(1) An appeal is to be dealt with by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings, but only by leave of the Land and Environment Court.(2) Leave to give fresh evidence may be granted to the Director of Public Prosecutions or Environment Protection Authority only in exceptional circumstances.
48 Determination of appeals
(1) The Land and Environment Court may determine an appeal against sentence:(a) by setting aside the sentence, or(b) by varying the sentence, or(c) by dismissing the appeal.(2) The Land and Environment Court may determine an appeal against an order referred to in section 43 (1) (a) or (b) or (1A) (a) or (b):(a) by setting aside the order and making such other order as it thinks just, or(b) by dismissing the appeal.(3) The Land and Environment Court may determine an appeal against an order referred to in section 42 (2B):(a) by setting aside the order and making such other order as it thinks just, or(b) by setting aside the order and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court, or(c) by dismissing the appeal.s 48: Am 2003 No 40, Sch 1.9 [4]; 2009 No 4, Sch 1 [14].
Division 3 Miscellaneous
49 Miscellaneous powers
(1) Without limiting its other powers, the Land and Environment Court may do any one or more of the following:(a) it may specify the sitting at which the hearing of an appeal or application for leave to appeal is to be heard or continued,(b) it may adjourn the hearing of an appeal or application for leave to appeal.(2) In determining an appeal, the Land and Environment Court may exercise any function that the original Local Court could have exercised in the original Local Court proceedings.(3) In determining an appeal against an order referred to in section 43 (1) (a) or (b) or (1A) (a) or (b), the Land and Environment Court has the same jurisdiction as the Supreme Court with respect to such an appeal.(4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.s 49: Am 2003 No 40, Sch 1.9 [5].
50 Limits on appeals
(1) No appeal may be made to the Land and Environment Court under this Part against a decision of a Local Court:(a) that is or has previously been the subject of an appeal or application for leave to appeal to the Land and Environment Court under this Part, or(b) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under Part 5.(2) Subsection (1) (b) does not prevent a person who has made an appeal or application for leave to appeal to the Supreme Court under Part 5 from making an appeal or application for leave to appeal to the Land and Environment Court under this Part if:(a) the Supreme Court has remitted the matter on appeal to a Local Court for redetermination, and the Local Court has redetermined the matter, or(b) the Supreme Court has refused leave to appeal in relation to:(i) an appeal made on a ground of mixed law and fact, or(ii) an appeal with respect to an environmental offence.(3) No application to set aside or vary any conviction or sentence of a Local Court that could be the subject of an appeal under this Part may be made to the Land and Environment Court (whether in its civil or criminal jurisdiction) except by way of an appeal under this Part.
51 Rules of court
Rules of court may be made under the Land and Environment Court Act 1979 with respect to the jurisdiction conferred by this Part on the Land and Environment Court.
Part 5 Appeals from Local Court to Supreme Court
Division 1 Appeals by defendants
Subdivision 1 Making of appeals
52 Appeals as of right
(1) Any person who has been convicted or sentenced by a Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone.(2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.
53 Appeals requiring leave
(1) Any person who has been convicted or sentenced by a Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves:(a) a question of fact, orbut only by leave of the Supreme Court.(b) a question of mixed law and fact,(2) Any person who has been convicted or sentenced by a Local Court with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.(3) Any person against whom:(a) an order has been made by a Magistrate in relation to the person in any committal proceedings, ormay appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.(b) an interlocutory order has been made by a Local Court in relation to the person in summary proceedings,(4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court.
Subdivision 2 Determination of appeals
54 Determination of applications for leave to appeal
(1) The Supreme Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal.(2) Leave to appeal must not be granted in relation to an application with respect to an environmental offence unless the Supreme Court is satisfied that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application.(3) If the Supreme Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just.(4) If the Supreme Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings.
55 Determination of appeals
(1) The Supreme Court may determine an appeal against conviction:(a) by setting aside the conviction, or(b) by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with the Supreme Court’s directions, or(c) by dismissing the appeal.(2) The Supreme Court may determine an appeal against sentence:(a) by setting aside the sentence, or(b) by varying the sentence, or(c) by setting aside the sentence and remitting the matter to the original Local Court for redetermination, in relation to sentence, in accordance with the Supreme Court’s directions, or(d) by dismissing the appeal.(3) The Supreme Court may determine an appeal against an order referred to in section 53 (3) (a) or (b):(a) by setting aside the order and making such other order as it thinks just, or(b) by dismissing the appeal.
Division 2 Appeals by prosecutors
Subdivision 1 Making of appeals
56 Appeals as of right
(1) The prosecutor may appeal to the Supreme Court against:(a) a sentence imposed by a Local Court in any summary proceedings, or(b) an order made by a Local Court that stays any summary proceedings for the prosecution of an offence, or(c) an order made by a Local Court dismissing a matter the subject of any summary proceedings, or(d) an order for costs made by a Magistrate against the prosecutor in any committal proceedings, orother than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone.(e) an order for costs made by a Local Court against the prosecutor in any summary proceedings,(2) An appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court.
57 Appeals requiring leave
(1) The prosecutor may appeal to the Supreme Court against:(a) a sentence imposed by a Local Court with respect to an environmental offence, or(b) an order that has been made by a Magistrate in relation to a person in any committal proceedings, orbut only on a ground that involves a question of law alone, and only by leave of the Supreme Court.(c) an interlocutory order that has been made by a Local Court in relation to a person in summary proceedings,(2) An application for leave to appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court.
Subdivision 2 Determination of appeals
58 Determination of applications for leave to appeal
(1) The Supreme Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal.(2) Leave to appeal must not be granted in relation to an application with respect to an environmental offence unless the Supreme Court is satisfied that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application.(3) If the Supreme Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the prosecutor as it thinks just.(4) If the Supreme Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings.
59 Determination of appeals
(1) The Supreme Court may determine an appeal against sentence:(a) by setting aside the sentence, or(b) by varying the sentence, or(c) by dismissing the appeal.(2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c) or (d) or 57 (1) (b) or (c):(a) by setting aside the order and making such other order as it thinks just, or(b) by dismissing the appeal.
Division 3 Miscellaneous
60 Limits on appeals
A person may not appeal to the Supreme Court under this Part against a decision of a Local Court:(a) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under this Part, or(b) that is or has previously been the subject of an appeal or application for leave to appeal to the Court of Criminal Appeal under the Criminal Appeal Act 1912.
61 Rules of court
Rules of court may be made under the Supreme Court Act 1970 with respect to the jurisdiction conferred by this Part on the Supreme Court.
Part 6 Provisions common to all appeals
62 Effect of defect in notice of appeal or application for leave to appeal
(1) A notice of appeal or application for leave to appeal is not invalid merely because of a defect, whether of substance or form, in the notice or application.(2) An appeal court hearing an appeal or application for leave to appeal may amend any such notice or application if it is satisfied that the notice or application is capable of amendment and ought to be amended.(3) Such an amendment may be made subject to such conditions as to adjournment as the appeal court thinks just.(4) An appeal court may dispose of an appeal or application for leave to appeal, despite the relevant notice or application having not been served on an interested party, if it is satisfied that the party:(a) is aware of the date, time and place fixed for dealing with the appeal or application and has not been prejudiced as a consequence of the notice or application having not been served, or(b) is avoiding service of the notice or application, or(c) cannot, after reasonable search and inquiry, be found.
63 Stay of execution of sentence pending determination of appeal
(1) This section applies to:(a) any sentence, andin respect of which an appeal or application for leave to appeal is made under this Act.(b) any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction,(2) The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed:(a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or(b) in the case of an appellant whose appeal is the subject of an application for leave, when leave to appeal is granted, or(c) in the case of an appellant who is in custody when the appeal is made or leave to appeal is granted, when the appellant enters into a bail undertaking, or when bail is dispensed with, under the Bail Act 1978.(3) Subject to any order of the appeal court, a stay of execution continues in force until the appeal is finally determined.(4) Such an order is to be made only if the appeal court is satisfied, in proceedings on an application by the prosecutor, that the appellant has unduly delayed the appeal proceedings.(5) In this section, a reference to an appellant who is in custody includes a reference to a person who is the subject of a periodic detention order or home detention order within the meaning of the Crimes (Administration of Sentences) Act 1999.
64 Extension of appeal proceedings to other convictions and sentences
If an appeal or application for leave to appeal has been duly made in respect of one conviction or sentence (the primary conviction or sentence), an appeal court may hear and determine an appeal or application for leave to appeal in respect of any other conviction or sentence made or imposed on the same day, and in respect of the same person, as the primary conviction or sentence, and may do so even though an appeal or application for leave to appeal has not been duly made in respect of the other conviction or sentence.
65 Appeal not to succeed on narrow technical grounds
(1) A conviction, order or sentence is not to be set aside on an appeal merely because of:(a) an omission or mistake in the form of the conviction or order, orif it appears to the appeal court that there were sufficient grounds before the Local Court to have authorised a conviction, order or sentence free from the omission, mistake or error.(b) an error in law in the order or sentence,(2) In such a case, the appeal court:(a) may amend the conviction, order or sentence and determine the appeal as if the omission, mistake or error did not exist, or(b) may remit the matter to the Local Court to make the conviction or order, or impose the sentence, authorised by law and to amend the conviction, order or sentence accordingly.
66 Unavailability of original Magistrate
If an appeal court remits a matter to a Local Court and the Magistrate who made the original conviction or order or imposed the original sentence:(a) has ceased to hold office as a Magistrate, orthe matter is to be dealt with by another Magistrate nominated by the Chief Magistrate.(b) is for any other reason unable to continue to hear and determine the matter,
67 Withdrawal of appeals and applications
(1) An appeal or application for leave to appeal may at any stage be withdrawn by the appellant, but only by leave of the appeal court.(2) In granting leave for an appeal or application for leave to appeal to be withdrawn, the appeal court may make such orders as are necessary to place the appellant as nearly as practicable in the same position as if the appeal or application had not been made.(3) Any order made by the appeal court in respect of an appeal or application for leave to appeal that is withdrawn is taken to have been made by the Local Court.
68 Court may confirm or vary conviction or sentence with effect from earlier day
(1) An appeal court may order that a conviction or sentence confirmed or varied by it on appeal, or any part of it:(a) is to take effect (as confirmed or varied) on and from a day specified in the order, orbeing the day on which the order is made or an earlier day.(b) in the case of a sentence that has been served in part, is to recommence (as confirmed or varied) on and from a day specified in the order,(1A) An appeal court may, for the purposes of making an order under subsection (1) in relation to a sentence that consists of, or includes, a disqualification from holding a driver licence (within the meaning of the Road Transport (Driver Licensing) Act 1998), take into account:(a) any period during which the defendant’s driver licence was suspended under section 205 of the Road Transport (General) Act 2005, and(b) any other periods after committing the offence to which the sentence relates during which the defendant held, or did not hold, a driver licence that would have permitted the defendant to drive a motor vehicle.Note—Section 34 of the Road Transport (General) Act 1999 enables a police officer to suspend, by written notice, a person’s driver licence within 48 hours after the person is charged with certain offences involving alcohol or drug use under the Road Transport (Safety and Traffic Management) Act 1999. The suspension has effect until the charge is heard and determined by a court. Also, section 63 of this Act provides for the stay of the execution of a sentence pending determination of appeal under this Act.(2) The order has effect despite any stay of execution that has been in force in respect of the sentence appealed against.s 68: Am 2003 No 71, Sch 1 [2]; 2005 No 11, Sch 3.6.
69 Effect on good behaviour bonds of confirmation of sentence
If an appeal court confirms a sentence on appeal, any good behaviour bond that the appellant entered into as a consequence of the original sentence continues to have effect according to its terms, except to the extent to which the appeal court otherwise directs and despite any stay of execution that has been in force in respect of the sentence.
70 Limit on costs awarded against public prosecutor
(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied:(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter:(i) that the prosecutor was or ought reasonably to have been aware of, and(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.(2) This section does not apply to the awarding of costs against a respondent acting in a private capacity.(3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.s 70: Am 2003 No 87, Sch 3.6.
71 Variation of sentences of Local Court
(1) An appeal court may not vary a sentence so that the sentence as varied could not have been imposed by the original Local Court.(2) An appeal court may not make an order or impose a sentence that could not have been made or imposed by the original Local Court.(3) Any sentence varied or imposed by an appeal court, and any order made by an appeal court under this Act, has the same effect and may be enforced in the same manner as if it were made by the original Local Court.
72 Orders for costs
An appeal court that orders an appellant or respondent to pay costs:(a) (Repealed)(b) must state a time within which the costs or other amount must be paid.s 72: Am 2009 No 4, Sch 1 [16].
73 Evidence of setting aside of conviction or sentence
(1) If a conviction or sentence is set aside on an appeal, the registrar of the appeal court must cause a memorandum to that effect to be endorsed on the conviction or on the order by which the sentence was imposed.(2) A copy of the memorandum is sufficient evidence that the conviction or sentence has been set aside.
Part 7 Review of convictions and sentences
pt 7: Ins 2006 No 70, Sch 1 [1].
Division 1 Preliminary
pt 7, div 1: Ins 2006 No 70, Sch 1 [1].
pt 7, div 1, note: Ins 2006 No 70, Sch 1 [1]. Rep 2007 No 27, Sch 2.12.
74 Definitions
(1) In this Part:biological material means human blood, semen, hair, saliva, skin tissue or other biological material from which DNA information may be obtained, whether the material separately identified or present in other material.conviction includes:(a) a verdict of the kind referred to in section 22 (1) (c) or (d) of the Mental Health (Forensic Provisions) Act 1990, being a verdict that the accused person committed the offence charged or an offence available as an alternative to the offence charged, or(b) an acquittal on the ground of mental illness, where the mental illness was not set up as a defence by the person acquitted.DNA Review Panel or Panel means the DNA Review Panel constituted by section 90.judicial officer means a judicial officer (or former judicial officer) within the meaning of the Judicial Officers Act 1986.previous review provisions means the provisions of:(a) Part 13A of the Crimes Act 1900 as in force before the repeal and transfer of those provisions to this Part by the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006, or(b) section 475 of the Crimes Act 1900, or section 26 of the Criminal Appeal Act 1912, as in force before the repeal of those sections by the Crimes Legislation (Review of Convictions) Amendment Act 1993.sentence includes a sentence or order imposed or made by any court following a conviction.(2) In this Part, a reference to a review of, or an inquiry into, a conviction or sentence includes a reference to a review of, or an inquiry into, any aspect of the proceedings giving rise to the conviction or sentence.s 74: Ins 2006 No 70, Sch 1 [1]. Am 2008 No 79, Sch 3.5.
75 Exercise of Supreme Court’s jurisdiction
(1) The jurisdiction of the Supreme Court under this Part is to be exercised by the Chief Justice or by a Judge of the Supreme Court who is authorised by the Chief Justice to exercise that jurisdiction.(2) References in this Part to the Supreme Court are to be construed accordingly.s 75: Ins 2006 No 70, Sch 1 [1].
Division 2 Petitions to Governor
pt 7, div 2: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, Part 13A, Div 2).
76 Petitions to Governor
A petition for a review of a conviction or sentence or the exercise of the Governor’s pardoning power may be made to the Governor by the convicted person or by another person on behalf of the convicted person.s 76: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, sec 474B).
77 Consideration of petitions
(1) After the consideration of a petition:(a) the Governor may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or(b) the Minister may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912, or(c) the Minister may request the Court of Criminal Appeal to give an opinion on any point arising in the case.(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.(3) The Governor or the Minister may refuse to consider or otherwise deal with a petition. Without limiting the foregoing, the Governor or the Minister may refuse to consider or otherwise deal with a petition if:(a) it appears that the matter:(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or(ii) has previously been dealt with under this Part or under the previous review provisions, or(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and(b) the Governor or the Minister is not satisfied that there are special facts or special circumstances that justify the taking of further action.(3A) The Governor or the Minister may defer consideration of a petition if:(a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or(c) the petition fails to disclose sufficient information to enable the conviction or sentence to be properly considered.(4) The Minister must cause a report to be given to the registrar of the Criminal Division of the Supreme Court as to any action taken by the Governor or the Minister under this section (including a refusal to consider or otherwise deal with a petition).(5) A petition (however described) that does not expressly seek a review of a conviction or sentence or the exercise of the Governor’s pardoning power may be dealt with as if it did if the Minister is of the opinion that it should be so dealt with.s 77: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, sec 474C). Am 2006 No 70, Sch 2.1 [2] [3].
Division 3 Applications to Supreme Court
pt 7, div 3: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, Part 13A, Div 3).
78 Applications to Supreme Court
(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.s 78: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, sec 474D).
79 Consideration of applications
(1) After considering an application under section 78 or on its own motion:(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:(a) it appears that the matter:(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or(ii) has previously been dealt with under this Part or under the previous review provisions, or(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.(3A) The Supreme Court may defer consideration of an application under section 78 if:(a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or(c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).s 79: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, sec 474E). Am 2006 No 70, Sch 2.1 [1]–[3].
Division 4 Inquiries
pt 7, div 4: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, Part 13A, Div 4).
80 Inquiries
An inquiry is to be conducted as soon as practicable after a direction for it has been given under section 77 or 79.s 80: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, sec 474F). Am 2006 No 70, Sch 2.1 [1].
81 Procedure for conducting inquiry
(1) An inquiry under this Division is to be conducted by:(a) a judicial officer appointed by the Governor, if the conduct of an inquiry was directed by the Governor, or(b) a judicial officer appointed by the Chief Justice, if the conduct of an inquiry was directed by the Supreme Court.(2) The judicial officer conducting the inquiry has:(a) the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923, and(b) in the case of a person who is a Judge of the Supreme Court or whose instrument of appointment under this section expressly so provides, the powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (except for section 17).(3) The Royal Commissions Act 1923 applies to any witness summoned by or before the judicial officer conducting the inquiry (except for sections 13 and 17 and, subject to subsection (2) (b), Division 2 of Part 2).(4) If it appears that the character of any person (being a person who was a witness at the proceedings from which the conviction or sentence arose) may be affected by the inquiry, the judicial officer must permit the person to be present at the inquiry and to examine any witness who attends the inquiry.s 81: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, secs 474G, 474H). Am 2006 No 70, Sch 2.1 [2].
82 Action to be taken on completion of inquiry
(1) On completing an inquiry under this Division, the judicial officer must cause a report on the results of the inquiry (incorporating a transcript of the depositions given in the course of the inquiry) to be sent to:(a) the Governor, in the case of an inquiry held on the direction of the Governor, or(b) the Chief Justice, in the case of an inquiry held on the direction of the Supreme Court.(2) The judicial officer may also refer the matter (together with a copy of the report) to the Court of Criminal Appeal:(a) for consideration of the question of whether the conviction should be quashed (in any case in which the judicial officer is of the opinion that there is a reasonable doubt as to the guilt of the convicted person), or(b) for review of the sentence imposed on the convicted person (in any case in which the judicial officer is of the opinion that there is a reasonable doubt as to any matter that may have affected the nature or severity of the sentence).(3) After considering a report furnished to the Chief Justice under this section, the Supreme Court must cause its own report on the matter (together with a copy of the judicial officer’s report) to be sent to the Governor.(4) The Governor may then dispose of the matter in such manner as to the Governor appears just.s 82: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, secs 474G, 474H). Am 2006 No 70, Sch 2.1 [2].
Division 5 Court of Criminal Appeal
pt 7, div 5: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, Part 13A, Div 5).
83 Definitions
In this Division:Court means the Court of Criminal Appeal.pardon means a pardon granted under the prerogative of mercy.s 83: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, sec 474I).
84 Quashing of conviction following pardon
(1) The Court may quash a conviction in respect of which a free pardon has been granted.(2) However, the mere fact that a free pardon has been granted does not entitle the person to whom the pardon has been granted to a quashing of the conviction.(3) An application for the quashing of the conviction may be made to the Court by the person to whom the pardon has been granted or by another person on behalf of that person.(4) However, such an application may not be made in respect of a free pardon arising from an inquiry under Division 4 if the matter has previously been dealt with under this Division as a consequence of a reference to the Court, under section 82 (2) (or so dealt with under the corresponding previous review provisions), by the judicial officer conducting the inquiry.(5) The registrar of the Court must cause a copy of any application made under this section to be given to the Minister.s 84: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, sec 474J). Am 2006 No 70, Sch 2.1 [1] [2] [4].
85 Procedure on application for quashing of conviction
(1) In any proceedings on an application under section 84:(a) the Crown has the right of appearance, and(b) the Court is to consider:(i) the report on the matter that is prepared by the judicial officer under section 82, and(ii) any report on the matter that is prepared by the Supreme Court under section 82, and(iii) any submissions on any such report that are made by the Crown or by the convicted person to whom the proceedings relate, and(c) no other evidence is to be admitted or considered except with the leave of the Court.(2) The rules governing the admissibility of evidence do not apply to any such proceedings.(3) For the purpose of enabling the convicted person to make submissions with respect to a report referred to in subsection (1), the convicted person is entitled to receive a copy of the report.(4) The provisions of Parts 3 and 4 of the Criminal Appeal Act 1912 relating to proceedings on an appeal under section 5 (1) of that Act apply to proceedings on an application under section 84, as if:(a) any reference to an appeal were a reference to proceedings on such an application, and(b) any reference to an appellant were a reference to the convicted person.s 85: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, sec 474K). Am 2006 No 70, Sch 2.1 [1] [2].
86 Reference to Court under section 77 (1) (b) or 79 (1) (b) following petition to Governor or application to Supreme Court
On receiving a reference under section 77 (1) (b) or 79 (1) (b), the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly.ss 86–88: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, secs 474L–474N). Am 2006 No 70, Sch 2.1 [1].
87 Request to Court under section 77 (1) (c) following petition to Governor
(1) On receiving a request under section 77 (1) (c), the Court is to consider, and furnish the Minister with its opinion on, the point raised by the request.(2) The Governor may then dispose of the matter in such manner as to the Governor appears just.ss 86–88: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, secs 474L–474N). Am 2006 No 70, Sch 2.1 [1].
88 Reference to Court under section 82 (2) following inquiry
(1) On receiving a reference under section 82 (2) (a), the Court is to deal with the matter so referred in the same way as if an application had been made to the Court under section 84 (3), and sections 84 and 85 apply accordingly.(2) On receiving a reference under section 82 (2) (b), the Court is to deal with the matter so referred in the same way as it is required to deal with matter the subject of an application under section 84 (3), and section 85 applies to proceedings on the matter so referred as if the references in that section to an application under section 84 were references to a reference under section 82 (2) (b).ss 86–88: Ins 2006 No 70, Sch 2.1 [1] (transferred from the Crimes Act 1900 No 40, secs 474L–474N). Am 2006 No 70, Sch 2.1 [1].
Division 6 Applications to DNA Review Panel
pt 7, div 6: Ins 2006 No 70, Sch 1 [1].
89 Previously convicted persons eligible to apply for review of conviction under this Division
(1) For the purposes of this Part, an eligible convicted person is a convicted person who is eligible in accordance with this section to make an application under this Division to the DNA Review Panel.(2) A convicted person is eligible to make an application to the Panel if, and only if, the person’s claim of innocence may be affected by DNA information obtained from biological material specified in the application.(3) A convicted person is not eligible to make an application to the Panel unless the person was convicted before 19 September 2006 and the conviction was for a relevant offence. A relevant offence is:(a) an offence that is punishable by imprisonment for life or for a period of 20 years or more, or(b) any other offence punishable by imprisonment in respect of which the Panel considers that there are special circumstances that warrant the application.(4) In determining whether there are special circumstances that warrant an application under subsection (3) (b), the Panel is to have regard to the following matters and any other relevant matter:(a) the nature and seriousness of the offence concerned,(b) the length of any sentence currently being served by the applicant,(c) whether the applicant has exhausted all avenues of appeal,(d) the current workload of the Panel,(e) the interests of justice.(5) A convicted person is not eligible to make an application to the Panel unless the person:(a) continues to be subject to the sentence imposed on conviction (whether the person is in custody or has been released on parole), or(b) is subject to supervision or detention under the Crimes (Serious Sex Offenders) Act 2006 in connection with the offence for which the person was convicted.ss 89–95: Ins 2006 No 70, Sch 1 [1].
90 Establishment of DNA Review Panel
(1) There is established by this section a DNA Review Panel.(2) The Panel consists of 6 members appointed by the Governor.(3) Of the members of the Panel:(a) one is to be a former judicial officer appointed as Chairperson of the Panel, and(b) one is to be a person nominated by the Premier to represent the victims of crime, and(c) one is to be the Director-General of the Attorney General’s Department or an officer nominated by the Director-General, and(d) one is to be the Senior Public Defender or an officer nominated by the Senior Public Defender, and(e) one is to be the Director of Public Prosecutions or an officer nominated by the Director, and(f) one is to be a former police officer nominated by the Commissioner of Police.(4) Schedule 2 has effect with respect to the members and procedure of the Panel.Note—Clause 4 of Schedule 2 enables the appointment of deputies of members.ss 89–95: Ins 2006 No 70, Sch 1 [1].
91 Functions and powers of DNA Review Panel
(1) The functions of the DNA Review Panel are as follows:(a) to consider any application under this Division from an eligible convicted person and to assess whether the person’s claim of innocence will be affected by DNA information obtained from biological material specified in the application,(b) to arrange, if appropriate, searches for that biological material and the DNA testing of that biological material,(c) to refer, if appropriate, a case to the Court of Criminal Appeal under this Division for review of a conviction following the receipt of DNA test results,(d) to make reports and recommendations to the Minister on systems, policies and strategies for using DNA technology to assist in the assessment of claims of innocence (including an annual report of its work and activities, and of statistical information relating to the applications it received).(2) In exercising its functions, the Panel is to have regard to the following:(a) the interests of and the consequences for any registered victim of the offence to which the application to the Panel relates,(b) the need to maintain public confidence in the administration of criminal justice in the State,(c) the public interest,(d) any other relevant matter.(3) For the purpose of exercising its functions, the Panel may engage persons to provide expert assistance to the Panel.(4) The Panel may require the Commissioner of Police or other public authority:(a) to provide information about biological material specified in an application under this Division (including information about whether the material exists or can be found), and(b) to provide any such biological material in their possession to the Panel.(5) The Commissioner of Police or a public authority:(a) is authorised and required to provide biological material or information about any such material that the Commissioner or authority is required to provide under subsection (4), and(b) is authorised to provide any other specified information that the Panel requests in order to determine an application under this Division.(6) The Panel has such other functions as are conferred on it by or under this or any other Act.ss 89–95: Ins 2006 No 70, Sch 1 [1].
92 Applications to DNA Review Panel
(1) An application under this Division may be made to the DNA Review Panel in writing by an eligible convicted person or by any other person on the convicted person’s behalf.(2) The application is to specify the biological material from which DNA information may be obtained to support the convicted person’s claim of innocence.(3) If the Panel is satisfied that the application is made by or on behalf of an eligible convicted person, it may (subject to this Division):(a) arrange searches for biological material specified in the application and the DNA testing of that biological material, and(b) prepare a report of its findings with respect to the application.ss 89–95: Ins 2006 No 70, Sch 1 [1].
93 Refusal or deferral of consideration
(1) The DNA Review Panel may refuse to consider or otherwise deal with an application under this Division.(2) Without limiting subsection (1), the Panel is to refuse to consider or otherwise deal with an application if:(a) it appears that the matter:(i) has been fully dealt with in the proceedings giving rise to the conviction (or in any proceedings on appeal from the conviction), or(ii) has previously been dealt with under this Division, or(iii) has previously been dealt with under Division 2 or 3 (or the corresponding provisions of the previous review provisions), and(b) the Panel is not satisfied that there are any special facts or special circumstances to justify the taking of further action under this Division.(3) Without limiting subsection (1), the Panel is to refuse to consider or otherwise deal with an application if it appears that the biological material specified in the application does not exist or cannot be found.(4) The Panel may defer consideration of an application if:(a) the time within which an appeal may be made against the conviction (without leave to appeal out of time) is yet to expire, or(b) the conviction is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or(c) the matter is being dealt with under Division 2 or 3, or(d) the application fails to disclose sufficient information to enable the matter to be properly considered.ss 89–95: Ins 2006 No 70, Sch 1 [1].
94 Referral of matter to Court of Criminal Appeal
(1) The DNA Review Panel may refer a matter (together with a copy of its report under section 92 (3) (b)) to the Court of Criminal Appeal for consideration of the question of whether the conviction should be set aside if the Panel is of the opinion that there is a reasonable doubt as to the guilt of the convicted person.(2) The Panel cannot refer a matter to the Court of Criminal Appeal unless the quorum present at the meeting of the Panel when the decision is made includes the Chairperson and the following members:(a) the Senior Public Defender or the officer nominated by the Senior Public Defender,(b) the Director of Public Prosecutions or the officer nominated by the Director.(3) On receiving a reference under this section, the Court of Criminal Appeal is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction under the Criminal Appeal Act 1912.(4) In any proceedings on a reference under this section:(a) the Crown has the right of appearance, and(b) the Court of Criminal Appeal is to consider:(i) the report prepared by the Panel under section 92 (3) (b), and(ii) any submissions on any such report that are made by the Crown or by the applicant to whom the proceedings relate, and(c) no other evidence is to be admitted or considered, except by leave of the Court of Criminal Appeal, and(d) if leave to admit evidence is granted, the rules governing the admissibility of evidence do not apply to the proceedings.(5) The convicted person is entitled to receive a copy of the report of the Panel under section 92 (3) (b) for the purpose of enabling the convicted person to make submissions on the report as referred to in subsection (4) (b).ss 89–95: Ins 2006 No 70, Sch 1 [1].
95 Notification and secrecy provisions
(1) If an application is made under this Division by an eligible convicted person, the DNA Review Panel is to notify:(a) the applicant and the registered victims of the offence concerned of any decision by the Panel to arrange searches for and DNA testing of biological material with respect to the application, and(b) the applicant and those registered victims of the determination of the Panel with respect to the application.The Panel may give such a notification by giving it to an Australian legal practitioner who is representing the applicant or registered victim.(2) The Panel may also provide information about an application under this Division:(a) to the Commissioner of Police, the Police Integrity Commission, the Independent Commission Against Corruption, the Commissioner of Corrective Services or the Director-General of the Department of Juvenile Justice, or(b) to the Minister or Chief Justice, or(c) to any other person or body prescribed by the regulations.(3) A person must not disclose any information that was acquired by the person as a member of the Panel (or as a person engaged to assist the Panel) unless the disclosure is made for the purpose of the exercise of functions under this Division or in the circumstances authorised by this Division.Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.(4) In this section, registered victim means a victim whose name is recorded on the Register of Victims under the Crimes (Administration of Sentences) Act 1999.ss 89–95: Ins 2006 No 70, Sch 1 [1].
96 Duty of police and other State officers to retain biological material evidence relating to eligible convicted persons
(1) This section applies to physical evidence comprising or containing biological material:(a) that was obtained by any member of the NSW Police Force in connection with the investigation or prosecution of the offence for which an eligible convicted person was convicted (but only if the person was convicted of an offence punishable by imprisonment for life or for 20 years or more), andreferred to in this section as relevant biological material.(b) that is in the possession or control of any member of the NSW Police Force on the commencement of this section,(2) It is the duty of members of the NSW Police Force (or members of any other authority of the State) to retain relevant biological material in their possession or control.(3) However, that duty does not apply to relevant biological material if:(a) the material is required, by the order of any court, to be returned to the person to whom the material belongs, or(b) the owner of the material is the victim of the offence concerned and the material is required to be returned promptly to minimise inconvenience to the victim, or(c) the material is of such size or nature as to render its retention impracticable (but only if steps have been taken to retain a portion of the material sufficient for DNA testing), or(d) the material has already been subject to DNA testing and the testing indicates that it relates only to the eligible convicted person concerned, or(e) the eligible convicted person concerned ceases to be an eligible convicted person, or(f) the material is required by or under any Act to be given to another person or destroyed.(4) An authority of the State is not under a duty to retain biological material if the material is given to a court or another authority of the State and has not been returned.(5) A person who, knowing that relevant biological material is required to be retained under this section, destroys or tampers with the material with the intention of preventing the material being subjected to DNA testing is guilty of an offence.Maximum penalty: Imprisonment for 10 years.s 96: Ins 2006 No 70, Sch 1 [1]. Am 2007 No 27, Sch 4.8.
97 Sunset provision
(1) The DNA Review Panel is abolished and ceases to have any functions under this Division (and the duty imposed under section 96 ceases) on:(a) the seventh anniversary of the establishment of the Panel, except as provided by paragraph (b), or(b) a later date (being not later than the tenth anniversary of the establishment of the Panel) appointed by proclamation before that seventh anniversary and after the review of this Division under subsection (2).(2) The Minister is to review this Division to determine whether the DNA Review Panel should continue to operate beyond the seventh anniversary of its establishment. The review is to be undertaken as soon as practicable after the fifth anniversary of its establishment and the report of the outcome of that review is to be tabled in each House of Parliament within 12 months after that anniversary.s 97: Ins 2006 No 70, Sch 1 [1].
Part 8 Acquittals
Division 1 Preliminary
pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
98 Definitions
(1) In this Part:administration of justice offence means any of the following offences:(a) bribery of, or interference with, a juror, witness or judicial officer,(b) perversion of (or conspiracy to pervert) the course of justice,(c) perjury.life sentence offence means murder or any other offence punishable by imprisonment for life.Note—On the enactment of this Part, the following offences were offences punishable by imprisonment for life:(a) murder (section 19A of the Crimes Act 1900),(b) an offence under section 61JA (1) of the Crimes Act 1900 (Aggravated sexual assault in company),(c) an offence under section 23 (2), 24 (2), 25 (2), 25 (2A), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985, being an offence that relates to a large commercial quantity of certain prohibited plants or drugs.15 years or more sentence offence means an offence punishable by imprisonment for life or for a period of 15 years or more.(2) For the purposes of this Part, the retrial of an acquitted person for an offence includes a trial if the offence is not the same as the offence of which the person was acquitted.(3) In this Part, a reference to the proceedings in which a person was acquitted includes, if they were appeal proceedings, a reference to the earlier proceedings to which the appeal related.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
Division 2 Retrial after acquittal for very serious offence
pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
99 Application of Division
(1) This Division applies where:(a) a person has been acquitted of an offence, and(b) according to the rules of law relating to double jeopardy (including rules based on abuse of process), the person is thereby precluded or may thereby be precluded from being retried for the same offence, or from being tried for some other offence, in proceedings in this State.Note—Under section 100 a person to whom this Division applies can only be retried for a life sentence offence (in the case of fresh or compelling evidence). Under section 101 a person to whom this Division applies can only be retried for a 15 years or more sentence offence (in the case of a tainted acquittal).(2) This section extends to a person acquitted in proceedings outside this State of an offence under the law of the place where the proceedings were held. However, this section does not so extend if the law of that place does not permit that person to be retried and the application of this Division to such a retrial is inconsistent with the Commonwealth Constitution or a law of the Commonwealth.(3) This section extends to a person acquitted before the commencement of this Division.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
100 Court of Criminal Appeal may order retrial—fresh and compelling evidence
(1) The Court of Criminal Appeal may, on the application of the Director of Public Prosecutions, order an acquitted person to be retried for a life sentence offence if satisfied that:(a) there is fresh and compelling evidence against the acquitted person in relation to the offence, and(b) in all the circumstances it is in the interests of justice for the order to be made.(2) If the Court of Criminal Appeal orders an acquitted person to be retried, the Court is to quash the person’s acquittal or remove the acquittal as a bar to the person being retried for the offence (as the case requires).(3) The Court of Criminal Appeal may order a person to be retried for a life sentence offence under this section even if the person had been charged with and acquitted of manslaughter or other lesser offence.(4) The Court of Criminal Appeal cannot order a person to be retried for a life sentence offence under this section where the person had been charged with and acquitted of the life sentence offence but had been convicted instead of manslaughter or other lesser offence.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
101 Court of Criminal Appeal may order retrial—tainted acquittals
(1) The Court of Criminal Appeal may, on the application of the Director of Public Prosecutions, order an acquitted person to be retried for a 15 years or more sentence offence if satisfied that:(a) the acquittal is a tainted acquittal, and(b) in all the circumstances it is in the interests of justice for the order to be made.(2) If the Court of Criminal Appeal orders an acquitted person to be retried, the Court is to quash the person’s acquittal or remove the acquittal as a bar to the person being retried for the offence (as the case requires).(3) The Court of Criminal Appeal may order a person to be retried for a 15 years or more sentence offence under this section even if the person had been charged with and acquitted of a lesser offence.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
102 Fresh and compelling evidence—meaning
(1) This section applies for the purpose of determining under this Division whether there is fresh and compelling evidence against an acquitted person in relation to an offence.(2) Evidence is fresh if:(a) it was not adduced in the proceedings in which the person was acquitted, and(b) it could not have been adduced in those proceedings with the exercise of reasonable diligence.(3) Evidence is compelling if:(a) it is reliable, and(b) it is substantial, and(c) in the context of the issues in dispute in the proceedings in which the person was acquitted, it is highly probative of the case against the acquitted person.(4) Evidence that would be admissible on a retrial under this Division is not precluded from being fresh and compelling evidence merely because it would have been inadmissible in the earlier proceedings against the acquitted person.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
103 Tainted acquittals—meaning
(1) This section applies for the purpose of determining under this Division whether the acquittal of an accused person is a tainted acquittal.(2) An acquittal is tainted if:(a) the accused person or another person has been convicted (in this State or elsewhere) of an administration of justice offence in connection with the proceedings in which the accused person was acquitted, and(b) it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted.(3) An acquittal is not a tainted acquittal if the conviction for the administration of justice offence is subject to appeal as of right.(4) If the conviction for the administration of justice offence is, on appeal, quashed after the Court of Criminal Appeal has ordered the acquitted person to be retried under this Division because of the conviction, the person may apply to the Court to set aside the order and:(a) to restore the acquittal that was quashed, oras the case requires.(b) to restore the acquittal as a bar to the person being retried for the offence,pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
104 Interests of justice—matters for consideration
(1) This section applies for the purpose of determining under this Division whether it is in the interests of justice for an order to be made for the retrial of an acquitted person.(2) It is not in the interests of justice to make an order for the retrial of an acquitted person unless the Court of Criminal Appeal is satisfied that a fair retrial is likely in the circumstances.(3) The Court is to have regard in particular to:(a) the length of time since the acquitted person allegedly committed the offence, and(b) whether any police officer or prosecutor has failed to act with reasonable diligence or expedition in connection with the application for the retrial of the acquitted person.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
105 Application for retrial—procedure
(1) Not more than one application for the retrial of an acquitted person may be made under this Division in relation to an acquittal. An application cannot be made in relation to an acquittal resulting from a retrial under this Part.(2) An application for the retrial of an acquitted person cannot be made under this Division unless the person has been charged with the offence for which a retrial is sought or a warrant has been issued for the person’s arrest in connection with such an offence.Note—Section 109 requires the Director of Public Prosecutions’ approval for the arrest of the accused or for the issue of a warrant for his or her arrest.(3) The application is to be made not later than 28 days after the person is so charged with that offence or the warrant is so issued for the person’s arrest. The Court of Criminal Appeal may extend that period for good cause.(4) The Court of Criminal Appeal must consider the application at a hearing.(5) The person to whom the application relates is entitled to be present and heard at the hearing (whether or not the person is in custody). However, the application can be determined even if the person is not present so long as the person has been given a reasonable opportunity to be present.(6) The powers of the Court of Criminal Appeal under section 12 of the Criminal Appeal Act 1912 may be exercised in connection with the hearing of the application.(7) The Court of Criminal Appeal may at one hearing consider more than one application under this Division for a retrial (whether or not relating to the same person), but only if the offences concerned should be tried on the same indictment.(8) If the Court of Criminal Appeal determines in proceedings on an application under this Division that the acquittal is not a bar to the person being retried for the offence concerned, it must make a declaration to that effect.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
106 Retrial
(1) An indictment for the retrial of a person that has been ordered under this Division cannot, without the leave of the Court of Criminal Appeal, be presented after the end of the period of 2 months after the order was made.(2) The Court must not give leave unless it is satisfied that:(a) the prosecutor has acted with reasonable expedition, and(b) there is good and sufficient cause for the retrial despite the lapse of time since the order was made.(3) If, after the end of the period of 2 months after an order for the retrial of an accused person was made under this Division, an indictment for the retrial of the person has not been presented or has been withdrawn or quashed, the person may apply to the Court of Criminal Appeal to set aside the order for the retrial and:(a) to restore the acquittal that was quashed, oras the case requires.(b) to restore the acquittal as a bar to the person being tried for the offence,(4) If the order is set aside, a further application cannot be made under this Division for the retrial of the accused person in respect of the offence concerned.(5) At the retrial of an accused person, the prosecution is not entitled to refer to the fact that the Court of Criminal Appeal has found that it appears that there is fresh and compelling evidence against the acquitted person or, as the case requires, that it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
Division 3 Appeals on questions of law
pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
107 Directed jury acquittals or acquittals in trials without juries
(1) This section applies to the acquittal of a person:(a) by a jury at the direction of the trial Judge, or(b) by a Judge of the Supreme Court or District Court in criminal proceedings for an indictable offence tried by the Judge without a jury, or(c) by the Supreme Court or the Land and Environment Court in its summary jurisdiction in any proceedings in which the Crown was a party.(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone.(3) An appeal may be made within 28 days after the acquittal or, with the leave of the Court of Criminal Appeal, may be made after that period.(4) The accused person is entitled to be present and heard at the appeal. However, the appeal can be determined even if the person is not present so long as the person has been given a reasonable opportunity to be present.(5) The Court of Criminal Appeal may affirm or quash the acquittal appealed against.(6) If the acquittal is quashed, the Court of Criminal Appeal may order a new trial in such manner as the Court thinks fit. For that purpose, the Court may (subject to the Bail Act 1978) order the detention or return to custody of the accused person in connection with the new trial.(7) If the acquittal is quashed, the Court of Criminal Appeal cannot proceed to convict or sentence the accused person for the offence charged nor direct the court conducting the new trial to do so.(8) This section does not apply to a person who was acquitted before the commencement of this section.Note—See section 5C of the Criminal Appeal Act 1912 for appeals against the quashing of an indictment.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
108 Appeals not affecting existing acquittal
(1) This section applies to the acquittal of a person:(a) in any proceedings tried on indictment (whether in respect of the whole or part of the indictment), or(b) in any proceedings tried by the Supreme Court or the Land and Environment Court in its summary jurisdiction in which the Crown was a party.(2) The Attorney General or the Director of Public Prosecutions may submit for determination by the Court of Criminal Appeal any question of law arising at or in connection with the trial (together with a statement of the circumstances out of which the question arose). The Court is to hear and determine any such question.(3) The determination by the Court of Criminal Appeal of the question submitted does not in any way affect or invalidate the verdict of acquittal or any other decision given at the trial.(4) Any person charged at the trial or affected by the decision is entitled to be heard before the Court of Criminal Appeal on the determination of the question submitted. If the person does not propose to be represented, the Attorney General or Director of Public Prosecutions is to instruct (and pay the reasonable costs of) counsel to argue the question before the Court on behalf of the person.(5) The hearing and determination of any question under this section is to be held in camera.(6) The following is not to be published:(a) any report of a submission made under subsection (2),(b) any report of proceedings under this section that discloses the identity of the person charged at the trial or affected by the decision given at the trial.Any such publication is punishable as a contempt of the Supreme Court.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
Division 4 Miscellaneous
pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
109 Authorisation of police investigations
(1) This section applies to any police investigation of the commission of an offence by an acquitted person in connection with the possible retrial of the person for the offence under Division 2.(2) For the purposes of this section, a police investigation is an investigation that involves:(a) any arrest, questioning or search of the acquitted person (or the issue of a warrant for the arrest of the person), orwhether with or without his or her consent.(b) any forensic procedure carried out on the person or any search or seizure of premises or property of or occupied by the person,(3) A police officer is not to carry out or authorise a police investigation to which this section applies unless the Director of Public Prosecutions:(a) has advised that in his or her opinion the acquittal would not be a bar to the trial of the acquitted person in this State for the offence, or(b) has given his or her written consent to the police investigation on the application in writing of the Commissioner or a Deputy Commissioner of Police.(4) The Commissioner or a Deputy Commissioner of Police may make an application for the police investigation only if satisfied that relevant evidence for the purposes of an application for a retrial under Division 2 has been obtained or is likely to be obtained as a result of the investigation.(5) The Director of Public Prosecutions may not give his or her consent to the police investigation unless satisfied that:(a) there is, or there is likely as a result of the investigation to be, sufficient new evidence to warrant the conduct of the investigation, and(b) it is in the public interest for the investigation to proceed.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
110 Bail
(1) This section has effect despite anything to the contrary in the Bail Act 1978.(2) There is a presumption in favour of bail in respect of a person who is charged with an offence for which a retrial is sought under Division 2 until the application is dealt with.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
111 Restrictions on publication
(1) A person must not publish any matter for the purpose of identifying or having the effect of identifying:(a) an acquitted person the subject of a police investigation referred to in section 109 (or of an application for authority for such an investigation), or(b) an acquitted person the subject of an application for a retrial under Division 2 or an appeal under Division 3, orunless the publication is authorised by order of the Court of Criminal Appeal or of the court before which the acquitted person is being retried.(c) the acquitted person the subject of an order for retrial under this Part or who is being retried under this Part,(2) The relevant court may make an order under this section only if the court is satisfied that it is in the interests of justice to do so.(3) Before making an order under this section, the Court is to give the acquitted person a reasonable opportunity to be heard on the application for the order.(4) The Court may at any time vary or revoke an order under this section.(5) The prohibition on publication under this section ceases to have effect (subject to any order under this section):(a) when there is no longer any step that could be taken which would lead to the acquitted person being retried under this Part, orwhichever is the earliest.(b) if the acquitted person is retried under this Part, at the conclusion of the trial,(6) Nothing in this section affects any prohibition of the publication of any matter under any other Act or law.(7) A contravention of the prohibition on publication under this section is punishable as contempt of the Supreme Court.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
112 Other appeal or review rights not affected
(1) Nothing in this Part affects a right of appeal in respect of a person’s acquittal on the ground of mental illness where mental illness was not set up as a defence by the person, as provided by section 5 (2) or 5AA (2) of the Criminal Appeal Act 1912.(2) Nothing in this Part affects a right of appeal or review under this or any other Act or law in respect of a person’s acquittal.pt 8, divs 1–4 (ss 98–112): Ins 2006 No 69, Sch 1 [2].
Part 9 Miscellaneous
pt 9 (previously Part 7): Renumbered 2006 No 69, Sch 2.1 [3].
113 Applications and appeals in relation to children
(1) An application or appeal in respect of a child may be made under this Act either by the child or, on behalf of the child:(a) by the child’s legal representative, or(b) except as provided by paragraph (c), by a person having parental responsibility for the child, or(c) if the Director-General of the Department of Community Services or a designated agency has the care responsibility for the child, by the Director-General.(2) In subsection (1), care responsibility, designated agency and parental responsibility have the same meanings as they have in the Children and Young Persons (Care and Protection) Act 1998.ss 113–117 (previously ss 74–78): Renumbered 2006 No 69, Sch 2.1 [3].
114 Prerogative of mercy preserved
Nothing in this Act limits or affects in any manner the prerogative of mercy.ss 113–117 (previously ss 74–78): Renumbered 2006 No 69, Sch 2.1 [3].
115 Attorney General may exercise functions of Director of Public Prosecutions
(1) Any function that by or under this Act is conferred or imposed on the Director of Public Prosecutions may, at any time and in any case, be exercised by the Attorney General, and may be so exercised even if the same or a similar function has already been exercised in the same case by the Director of Public Prosecutions.(2) Any function exercised by the Attorney General pursuant to this section is taken to have been exercised by the Director of Public Prosecutions.ss 113–117 (previously ss 74–78): Renumbered 2006 No 69, Sch 2.1 [3].
116 Act not to apply to Magistrate’s ministerial functions
This Act does not apply to or in respect of a Magistrate’s exercise of ministerial functions, except to the extent to which this Act expressly so provides.ss 113–117 (previously ss 74–78): Renumbered 2006 No 69, Sch 2.1 [3].
117 Bail Act 1978 to prevail
The Bail Act 1978 prevails to the extent of any inconsistency between that Act and this Act.ss 113–117 (previously ss 74–78): Renumbered 2006 No 69, Sch 2.1 [3].
117A Proceedings for offences
Proceedings for an offence under this Act or the regulations (other than under section 96) may be dealt with summarily before a Local Court.s 117A: Ins 2006 No 70, Sch 1 [2].
118 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect to this Act.(2) To the extent to which any other Act so provides, the regulations may modify the operation of this Act for the purposes of its application to matters arising under that other Act.s 118: Renumbered 2006 No 69, Sch 2.1 [3].
119 Savings, transitional and other provisions
Schedule 1 has effect.ss 119 (previously ss 79, 80): Renumbered 2006 No 69, Sch 2.1 [3].
120 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as practicable after the period of 5 years from the date of assent to this Act.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.(4) A review of the provisions of Part 8 is to be undertaken as soon as practicable after the period of 5 years after their insertion into this Act by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (and the report of the outcome of that review is to be tabled in each House of Parliament within 12 months after the end of that period) despite anything to the contrary in this section.s 120 (previously s 81): Renumbered 2006 No 69, Sch 2.1 [3]. Am 2006 No 69, Sch 1 [3].
Schedule 1 Savings, transitional and other provisions
(Section 80)
Part 1 Preliminary
1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this ActCourts Legislation Amendment Act 2003, but only in relation to the amendments made to this ActCourts Legislation Amendment Act 2004, but only in relation to the amendments made to this ActCrimes and Courts Legislation Amendment Act 2006, but only in relation to the amendments made to this Act(2) Such a provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.(3) To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.
Part 2 Provisions consequent on enactment of this Act
Division 1 General
2 Definition
In this Part:appointed day means:(a) in relation to a provision of the Justices Act 1902 that has been repealed, the day on which the repeal commences, or(b) in relation to a provision of this Act, the day on which the provision commences.
3 Applications and referrals under Part 4A of Justices Act 1902
Part 4A of the Justices Act 1902 continues to apply to and in respect of any application or reference under that Part that had not been finally dealt with before the appointed day as if that Act had not been repealed.
4 Appeals and applications under Part 5 of Justices Act 1902
Part 5 of the Justices Act 1902 continues to apply to and in respect of any appeal or application under that Part that had not been finally dealt with before the appointed day as if that Act had not been repealed.
5 Appeals and applications under Part 5A of Justices Act 1902
Part 5A of the Justices Act 1902 continues to apply to and in respect of any appeal or application under that Part that had not been finally dealt with before the appointed day as if that Act had not been repealed.
6 Appeals and applications under Part 5B of Justices Act 1902
Part 5B of the Justices Act 1902 continues to apply to and in respect of any appeal or application under that Part that had not been finally dealt with before the appointed day as if that Act had not been repealed.
7 Construction of certain references
Subject to this Schedule and the regulations, in any Act or instrument:(a) a reference to a provision of the Justices Act 1902 for which there is a corresponding provision in this Act extends to the corresponding provision of this Act, and(b) a reference to any act, matter or thing referred to in a provision of the Justices Act 1902 for which there is a corresponding provision in this Act extends to the corresponding act, matter or thing referred to in the corresponding provision of this Act.
Part 3 Provisions consequent on enactment of Courts Legislation Amendment Act 2003
8 Application of amendment to section 68
The amendment made to section 68 by Schedule 1 [2] to the Courts Legislation Amendment Act 2003 extends to appeals that were commenced before the commencement of the amendment but not finally determined before that commencement.
Part 4 Provision consequent on enactment of Courts Legislation Amendment Act 2004
9 Appeal against refusal of application under section 4
Sections 11A and 16A, as inserted by the Courts Legislation Amendment Act 2004, and sections 13 and 14 as amended by that Act, extend to apply to and in respect of an application under section 4 that was refused by the Local Court before the commencement of Schedule 3 to that Act, unless, on that commencement, an appeal against the relevant conviction or sentence is pending in the District Court or has been dealt with by that Court.
Part 5 Provisions consequent on enactment of Crimes and Courts Legislation Amendment Act 2006
10 Application of amendment to definition of “sentence”
The amendment to the definition of sentence in section 3 (1) made by the Crimes and Courts Legislation Amendment Act 2006 extends to orders referred to in paragraph (ba) of that definition that were made before the commencement of that amendment, but does not affect any appeal proceedings or application under this Act that was finally determined before the commencement of that amendment.
Part 6 Provisions consequent on enactment of Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006
11 Definition
In this Part:amending Act means the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006.
12 Review of previous convictions and sentences
Part 7 of this Act, as inserted by the amending Act, extends to convictions and sentences entered or imposed before the commencement of that Part.
13 Pending applications under Part 13A of Crimes Act for review of convictions and sentences
(1) A petition or application that was made under Part 13A of the Crimes Act 1900 before the repeal and transfer of that Part by the amending Act and that had not been finally determined under that Part immediately before its repeal is taken to be a petition or application under the corresponding provision of Part 7 of this Act.(2) Any referral or report with respect to such a petition or application that was made under Part 13A of the Crimes Act 1900 is taken to have been made under the corresponding provision of Part 7 of this Act.
14 Pending applications to set aside conviction following free pardon
An application to the Court of Criminal Appeal that was made under Part 13A of the Crimes Act 1900 before the repeal and transfer of that Part by the amending Act for the purpose of setting aside a conviction for an offence for which a free pardon has been granted and that had not been finally determined under that Part immediately before its repeal is taken to be an application under section 84 of this Act.
Part 7 Provision consequent on enactment of Crimes (Appeal and Review) Amendment Act 2009
15 Application of amendments
Any amendment made by the Crimes (Appeal and Review) Amendment Act 2009 applies only in respect of appeals, applications for leave to appeal and applications for annulment made after the commencement of the amendment.
sch 1: Am 2003 No 71, Sch 1 [3] [4]; 2004 No 68, Sch 3 [7] [8]; 2006 No 69, Sch 2.1 [4]; 2006 No 70, Sch 1 [3] [4]; 2006 No 107, Sch 1.8 [3] [4]; 2009 No 4, Sch 1 [17] [18].
Schedule 2 Members and procedure of DNA Review Panel
(Section 90)
1 Definitions
In this Schedule:Chairperson means the Chairperson of the Panel.member means any member of the Panel.Panel means the DNA Review Panel constituted by section 90.
2 Terms of office of members
Subject to this Schedule, a member holds office for such period (not exceeding 3 years) as is specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
3 Remuneration
A member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.
4 Deputies
(1) The Minister may, from time to time, appoint a person to be the deputy of a member, and the Minister may revoke any such appointment.(2) A person is not eligible to be appointed as the deputy of a member unless the person has the same qualification that was required for appointment as that member.(3) In the absence of a member, the member’s deputy may, if available, act in the place of the member.(4) While acting in the place of a member, a person:(a) has all the functions of the member and is taken to be a member, and(b) is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.(5) For the purposes of this clause, a vacancy in the office of a member is taken to be an absence of the member.
5 Vacancy in office of member
(1) The office of a member becomes vacant if the member:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) is removed from office by the Governor under this clause, or(e) is absent from 4 consecutive meetings of the Panel of which reasonable notice has been given to the member personally or by post, except on leave granted by the Minister or unless the member is excused by the Minister for having been absent from those meetings, or(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(g) becomes a mentally incapacitated person, or(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.(2) The Governor may at any time remove a member from office.
6 Filling of vacancy in office of member
If the office of any member becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
7 Effect of certain other Acts
(1) Chapter 1A of the Public Sector Employment and Management Act 2002 does not apply to or in respect of the appointment of a member.(2) If by or under any Act provision is made:(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, orthe provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.(b) prohibiting the person from engaging in employment outside the duties of that office,
8 General procedure
The procedure for the calling of meetings of the Panel and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Chairperson.
9 Quorum
The quorum for a meeting of the Panel is 4 members, of whom one must be the Chairperson.
10 Presiding member
(1) The Chairperson is to preside at a meeting of the Panel.(2) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
11 Voting
(1) A decision supported by a majority of the votes cast at a meeting of the Panel at which a quorum is present is the decision of the Panel.(2) This clause is subject to section 94 (Referral of matter to Court of Criminal Appeal).
12 Transaction of business outside meetings or by telephone
(1) The Panel may, if it thinks fit, transact any of its business by the circulation of papers among all the members of the Panel for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the Panel.(2) The Panel may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.(3) For the purposes of:(a) the approval of a resolution under subclause (1), orthe Chairperson and each member have the same voting rights as they have at an ordinary meeting of the Panel.(b) a meeting held in accordance with subclause (2),(4) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the Panel.(5) Papers may be circulated among the members for the purposes of subclause (1) by facsimile or other transmission of the information in the papers concerned.
sch 2: Ins 2006 No 70, Sch 1 [5].