Criminal Law Consolidation Act 1935


Part 10—Limitations on rules relating to double jeopardy



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Part 10—Limitations on rules relating to double jeopardy

Division 1—Preliminary

331—Interpretation

(1) In this Part—



acquittal of an offence includes—

(a) acquittal in appellate proceedings relating to the offence; and

(b) acquittal at the direction or discretion of the court,

(whether in this State or in another jurisdiction);



administration of justice offence means any of the following offences:

(a) an offence of perjury or subornation of perjury;

(b) an offence against section 243, 244, 245 or 248;

(c) an offence against section 249 or 250 where the public officer is a judicial officer;

(d) an offence against section 256;

(e) a substantially similar offence against a previous enactment or the law of another jurisdiction corresponding to an offence referred to in a preceding paragraph;



Category A offence means any of the following offences:

(a) an offence of murder;

(b) manslaughter or attempted manslaughter;

(c) an aggravated offence of rape;

(d) an aggravated offence of robbery;

(e) an offence of trafficking in a commercial quantity, or large commercial quantity, of a controlled drug contrary to section 32(1) or (2) of the Controlled Substances Act 1984;

(f) an offence of manufacturing a commercial quantity, or large commercial quantity, of a controlled drug contrary to section 33(1) or (2) of the Controlled Substances Act 1984;

(g) an offence of selling a commercial quantity, or large commercial quantity, of a controlled precursor contrary to section 33A(1) or (2) of the Controlled Substances Act 1984;

(h) a substantially similar offence against a previous enactment or the law of another jurisdiction corresponding to an offence referred to in a preceding paragraph;

judicial body means a court or tribunal, body or person invested by law with judicial or quasi judicial powers, or with authority to make an inquiry or to receive evidence;

judicial officer means a person who alone or with others constitutes a judicial body;

relevant offence means—

(a) a Category A offence; and

(b) any other offence for which the offender is liable to be imprisoned for life or for at least 15 years.

(2) For the purposes of this Part, a reference to an offence of murder includes—

(a) an offence of conspiracy to murder; and

(b) an offence of aiding, abetting, counselling or procuring the commission of murder.

332—Meaning of fresh and compelling evidence

(1) For the purposes of this Part, evidence relating to an offence of which a person is acquitted is—

(a) fresh if—

(i) it was not adduced at the trial of the offence; and

(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and

(b) compelling if—

(i) it is reliable; and

(ii) it is substantial; and

(iii) it is highly probative in the context of the issues in dispute at the trial of the offence.

(2) Evidence that would be admissible on a retrial under this Part is not precluded from being fresh or compelling just because it would not have been admissible in the earlier trial of the offence resulting in the relevant acquittal.

333—Meaning of tainted acquittal

For the purposes of this Part, if at the trial of an offence a person is acquitted of the offence, the acquittal will be tainted if—

(a) the person or another person has been convicted (whether in this State or in another jurisdiction) of an administration of justice offence in connection with the trial resulting in the acquittal; and

(b) it is more likely than not that, had it not been for the commission of the administration of justice offence, the person would have been convicted of the offence at the trial.

334—Application of Part

(1) This Part applies whether the offence of which a person is acquitted is alleged to have occurred before or after the commencement of this Part.

(2) This Part does not apply if a person is acquitted of the offence with which the person is charged but is convicted of a lesser offence arising out of the same set of circumstances that gave rise to the charge.

(3) However, this Part does apply in the circumstances set out in subsection (2) if the acquittal was tainted.



Division 2—Circumstances in which police may investigate conduct relating to offence of which person previously acquitted

335—Circumstances in which police may investigate conduct relating to offence of which person previously acquitted

(1) A police officer may not carry out an investigation to which this section applies, or authorise the carrying out of an investigation to which this section applies, without the written authorisation of the Director of Public Prosecutions.

(2) However, a police officer may carry out, or authorise the carrying out of, such an investigation without the written authority of the Director of Public Prosecutions if the police officer reasonably believes that—

(a) urgent action is required in order to prevent the investigation being substantially and irrevocably prejudiced; and

(b) it is not reasonably practicable in the circumstances to obtain the consent of the Director of Public Prosecutions before taking the action.

(3) The Director of Public Prosecutions must be informed, as soon as practicable, of any action taken under subsection (2) and the investigation must not proceed further without the written authorisation of the Director of Public Prosecutions.

(4) The Director of Public Prosecutions must not authorise an investigation to which this section applies unless—

(a) the Director of Public Prosecutions is satisfied that—

(i) as a result of the investigation, the person under investigation is, or is likely, to be charged with—

(A) an offence of which the person has previously been acquitted; or

(B) an administration of justice offence that is related to the offence of which the person has previously been acquitted; and

(ii) it is in the public interest for the investigation to proceed; and

(b) in the opinion of the Director of Public Prosecutions, the previous acquittal would not be a bar to the trial of the person for an offence that may be charged as a result of the investigation.

(5) This section applies to an investigation in respect of a person's conduct in relation to an offence of which the person has previously been acquitted and includes—

(a) the questioning, search or arrest of the person;

(b) the issue of a warrant for the arrest of the person;

(c) a forensic procedure (within the meaning of the Criminal Law (Forensic Procedures) Act 2007) carried out on the person;

(d) the search or seizure of property or premises owned or occupied by the person.

(6) In subsection (5), a reference to an offence of which the person has previously been acquitted includes a reference—

(a) to any other offence with which the person was charged that was joined in the same information as that in which the offence of which the person was acquitted was charged; and

(b) to any other offence of which the person could have been convicted at the trial of the offence of which the person was acquitted.



Division 3—Circumstances in which trial or retrial of offence will not offend against rules of double jeopardy

336—Retrial of relevant offence of which person previously acquitted where acquittal tainted

(1) The Full Court may, on application by the Director of Public Prosecutions, order a person who has been acquitted of a relevant offence to be retried for the offence if the Court is satisfied that—

(a) the acquittal was tainted; and

(b) in the circumstances, it is likely that the new trial would be fair having regard to—

(i) the length of time since the relevant offence is alleged to have occurred; and

(ii) whether there has been any failure on the part of the police or prosecution to act with reasonable diligence or expedition with respect to the making of the application; and

(iii) any other matter that the Court considers relevant.

(2) An application under subsection (1) must be made within 28 days after—

(a) the person is charged with the relevant offence following the acquittal; or

(b) a warrant is issued for the person's arrest for the relevant offence following the acquittal.

(3) If the Full Court orders a person to be retried for an offence of which the person has been acquitted, the Court—

(a) must—

(i) quash the acquittal; or

(ii) remove the acquittal as a bar to the person being retried for the offence,

(as the case requires); and

(b) must make a suppression order under Part 8 of the Evidence Act 1929 forbidding the publication of specified material or material of a specified class if satisfied that the order is necessary to prevent prejudice to the administration of justice; and

(c) may make any other order that the Court thinks fit in the circumstances.

(4) The Director of Public Prosecutions may not, without the permission of the Full Court, present an information for the retrial of a person in respect of whom the Court has made an order under this section more than 2 months after the Court made the order.

(5) The Full Court should not give permission for the late presentation of an information for a retrial unless the Court is satisfied that, despite the period of time that has passed since the Court made the order for the retrial—

(a) the Director of Public Prosecutions has acted with reasonable expedition; and

(b) there is good and sufficient reason why the late presentation of the information should be allowed.

(6) If, more than 2 months after an order for the retrial of a person for a relevant offence was made under this section, an information for the retrial of the person for the offence has not been presented or has been withdrawn or quashed, the person may apply to the Full Court to set aside the order for the retrial and—

(a) to restore the acquittal that was quashed; or

(b) to restore the acquittal as a bar to the person being retried for the offence,

(as the case requires).

(7) In this section—

acquitted person means a person who has been acquitted of a relevant offence (whether in this State or in another jurisdiction).

337—Retrial of Category A offence of which person previously acquitted where there is fresh and compelling evidence

(1) The Full Court may, on application by the Director of Public Prosecutions, order a person who has been acquitted of a Category A offence to be retried for the offence if the Court is satisfied that—

(a) there is fresh and compelling evidence against the acquitted person in relation to the offence; and

(b) in the circumstances, it is likely that the new trial would be fair having regard to—

(i) the length of time since the offence is alleged to have occurred; and

(ii) whether there has been any failure on the part of the police or prosecution to act with reasonable diligence or expedition with respect to the making of the application.

(2) An application under subsection (1)—

(a) must be made within 28 days after—

(i) the person is charged with the Category A offence following the acquittal; or

(ii) a warrant is issued for the person's arrest for the Category A offence following the acquittal; and

(b) may only be made once in respect of the person's acquittal of the Category A offence.



Note—

An application cannot be made under this section for a further retrial if the person is acquitted of the Category A offence on being retried for the offence (but an application may be made under section 336 if the acquittal resulting from the retrial is tainted).

(3) If the Full Court orders a person to be retried for an offence of which the person has been acquitted, the Court—

(a) must—

(i) quash the acquittal; or

(ii) remove the acquittal as a bar to the person being retried for the offence,

(as the case requires); and

(b) must make a suppression order under Part 8 of the Evidence Act 1929 forbidding the publication of specified material or material of a specified class if satisfied that the order is necessary to prevent prejudice to the administration of justice; and

(c) may make any other order that the Court thinks fit in the circumstances.

(4) The Director of Public Prosecutions may not, without the permission of the Full Court, present an information for the retrial of a person in respect of whom the Court has made an order under this section more than 2 months after the Court made the order.

(5) The Full Court should not give permission for the late presentation of an information for a retrial unless the Court is satisfied that, despite the period of time that has passed since the Court made the order for the retrial—

(a) the Director of Public Prosecutions has acted with reasonable expedition; and

(b) there is good and sufficient reason why the late presentation of the information should be allowed.

(6) If, more than 2 months after an order for the retrial of a person for a Category A offence was made under this section, an information for the retrial of the person for the offence has not been presented or has been withdrawn or quashed, the person may apply to the Full Court to set aside the order for the retrial and—

(a) to restore the acquittal that was quashed; or

(b) to restore the acquittal as a bar to the person being retried for the offence,

(as the case requires).

(7) In this section—



acquitted person means a person who has been acquitted of a Category A offence (whether in this State or in another jurisdiction).

338—Circumstances in which person may be charged with administration of justice offence relating to previous acquittal

(1) The Full Court may, on application by the Director of Public Prosecutions, order a person who has been acquitted of an indictable offence to be tried for an administration of justice offence that is related to the offence of which the person has been acquitted if the Court is satisfied that—

(a) there is fresh evidence against the acquitted person in relation to the administration of justice offence; and

(b) in the circumstances, it is likely that a trial would be fair having regard to—

(i) the length of time since the administration of justice offence is alleged to have occurred; and

(ii) whether there has been any failure on the part of the police or prosecution to act with reasonable diligence or expedition with respect to the making of the application; and

(iii) any other matter that the Court considers relevant.

(2) An application under subsection (1) must be made within 28 days after—

(a) the person is charged with the administration of justice offence; or

(b) a warrant is issued for the person's arrest for the administration of justice offence.

(3) If the Full Court orders a person to be tried for an administration of justice offence that is related to an indictable offence of which the person has been acquitted, the Court—

(a) must remove the acquittal as a bar to the person being tried for the administration of justice offence; and

(b) may make any other order that the Court thinks fit in the circumstances.

(4) The Director of Public Prosecutions may not, without the permission of the Full Court, present an information for the trial of a person in respect of whom the Court has made an order under this section more than 2 months after the Court made the order.

(5) The Full Court should not give permission for the late presentation of an information for any such trial unless the Court is satisfied that, despite the period of time that has passed since the Court made the order for the trial—

(a) the Director of Public Prosecutions has acted with reasonable expedition; and

(b) there is good and sufficient reason why the late presentation of the information should be allowed.

(6) If, more than 2 months after an order for the trial of a person for an administration of justice offence was made under this section, an information for the trial of the person for the offence has not been presented or has been withdrawn or quashed, the person may apply to the Full Court to set aside the order for the trial and to restore the acquittal as a bar to the person being tried for the offence.

(7) In this section—



acquitted person means a person who has been acquitted of an indictable offence (whether in this State or in another jurisdiction).

Division 4—Prohibition on making certain references in retrial

339—Prohibition on making certain references in retrial

At the retrial of a person for an offence of which the person had previously been acquitted by order of the Full Court under Division 3, the prosecution must not refer to the fact that, before making the order for the retrial of the offence, the Court had to be satisfied that—

(a) the acquittal was tainted; or

(b) there is fresh and compelling evidence against the acquitted person in relation to the offence,

(as the case requires).



Part 10A—Appeal against sentence

340—Appeal against sentence

Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—

(a) impose the sentence that should have been imposed in the first instance; and

(b) order that the sentence—

(i) will be taken to have come into effect on a date before the date of the order; or

(ii) will take effect on a date on or after the date of the order.

Part 11—Appellate proceedings

Division 1—Preliminary

348—Interpretation

In this Part, unless inconsistent with the context or subject matter—

ancillary order means—

(ba) a restraining order issued under section 19A of the Criminal Law (Sentencing) Act 1988; or

(c) an order for the restitution of property under section 52 of the Criminal Law (Sentencing) Act 1988; or

(d) an order for compensation under section 53 of the Criminal Law (Sentencing) Act 1988,

made by the District Court, or by the Supreme Court in the exercise of its criminal jurisdiction at first instance;

appellant includes a person who has been convicted and desires to appeal under this Act;

conviction in relation to a case where a court finds a person guilty of an offence but does not record a conviction, includes the formal finding of guilt;

court means the Supreme Court or the District Court;

information means an information on which a person is put upon his trial for any crime or offence at any criminal session of the Supreme Court or before any court of Oyer and Terminer and General Gaol Delivery or at any sitting of the District Court, as the case may be;

issue antecedent to trial means a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court;

judge means a judge of the Supreme Court or the District Court;

sentence includes any order of the court of trial or of the judge thereof made on, or in connection with, a conviction with reference to the convicted person, or any property, or with reference to any moneys to be paid by the person, and also includes an order under section 39 of the Criminal Law (Sentencing) Act 1988 discharging the convicted person, without imposing a penalty, on the person entering into a bond.

349—Court to decide according to opinion of majority

The determination of any question before the Full Court under this Act shall be according to the opinion of the majority of the members of the Court hearing the case.


Division 2—Reference of questions of law

350—Reservation of relevant questions

(1) In this section—

relevant question means a question of law and includes a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.

(2) A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue—

(a) antecedent to trial; or

(b) relevant to the trial or sentencing of the defendant,

and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.

(3) Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant.

(4) A court before which a person has been tried and acquitted of an offence must, on application by the Attorney-General or the Director of Public Prosecutions, reserve a question antecedent to the trial, or arising in the course of the trial, for consideration and determination by the Full Court.

(5) The Full Court may, on application under subsection (6), require a court to refer a relevant question to it for consideration and determination.

(6) An application for an order under subsection (5) may be made by—

(a) the Attorney-General or the Director of Public Prosecutions; or

(b) a person who—

(i) has applied unsuccessfully to the primary court to have the question referred for consideration and determination by the Full Court; and

(ii) has obtained the permission of the primary court or the Supreme Court to make the application.

(7) If a person is convicted, and a question relevant to the trial or sentencing is reserved for consideration and determination by the Full Court, the primary court or the Supreme Court may release the person on bail on conditions the court considers appropriate.

351—Case to be stated by trial judge

(1) When a court reserves a question for consideration and determination of the Full Court, the presiding judge must state a case setting out—

(a) the question reserved; and

(b) the circumstances out of which the reservation arises; and

(c) any findings of fact necessary for the proper determination of the question reserved.

(2) The Full Court may, if it thinks necessary, refer the stated case back for amendment.

351A—Powers of Full Court on reservation of question

(1) The Full Court may determine a question reserved under this Part and make consequential orders and directions.



Examples—

The Full Court might, for example, quash an information or a count of an information or stay proceedings on an information or a count of an information if it decides that prosecution of the charge is an abuse of process.

The Full Court might, for example, set aside a conviction and order a new trial.

(2) However—

(a) a conviction must not be set aside on the ground of the improper admission of evidence if—

(i) the evidence is merely of a formal character and not material to the conviction; or

(ii) the evidence is adduced for the defence; and

(b) a conviction need not be set aside if the Full Court is satisfied that, even though the question reserved should be decided in favour of the defendant, no miscarriage of justice has actually occurred; and

(c) if the defendant has been acquitted by the court of trial, no determination or order of the Full Court can invalidate or otherwise affect the acquittal.

351B—Costs

(1) If a question is reserved on application by the Attorney-General or the Director of Public Prosecutions on an acquittal, the Crown is liable to pay the taxed costs of the defendant in proceedings for the reservation and determination of the question.

(2) If the defendant does not appear in the proceedings, the Crown must instruct counsel to present argument to the Court that might have been presented by counsel for the defendant.



Division 3—Appeals

352—Right of appeal in criminal cases

(1) Appeals lie to the Full Court as follows:

(a) if a person is convicted on information—

(i) the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;

(ii) the convicted person may appeal against the conviction on any other ground with the permission of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;

(iii) the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Full Court;

(ab) if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Full Court, appeal against the acquittal on any ground—

(i) if the trial was by judge alone; or

(ii) if the trial was by jury and the judge directed the jury to acquit the person;

(b) if a court makes a decision on an issue antecedent to trial that is adverse to the prosecution, the Director of Public Prosecutions may appeal against the decision—

(i) as of right, on any ground that involves a question of law alone; or

(ii) on any other ground with the permission of the Full Court;

(c) if a court makes a decision on an issue antecedent to trial that is adverse to the defendant—

(i) the defendant may appeal against the decision before the commencement or completion of the trial with the permission of the court of trial (but permission will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial);

(ii) the defendant may, if convicted, appeal against the conviction under paragraph (a) asserting as a ground of appeal that the decision was wrong.

353—Determination of appeals in ordinary cases

(1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) Subject to the special provisions of this Act, the Full Court shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.

(2a) On an appeal against acquittal brought by the Director of Public Prosecutions, the Full Court may exercise any one or more of the following powers:

(a) it may dismiss the appeal;

(b) it may allow the appeal, quash the acquittal and order a new trial;

(c) it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.

(3) If the Full Court orders a new trial under subsection (2a)(b), the Court—

(a) may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but

(b) may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.

(3a) If an appeal is brought against a decision on an issue antecedent to trial, the Full Court may exercise any one or more of the following powers:

(a) it may confirm, vary or reverse the decision subject to the appeal; and

(b) it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.

(4) Subject to subsection (5), on an appeal against sentence, the Full Court must—

(a) if it thinks that a different sentence should have been passed—

(i) quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or

(ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or

(b) in any other case—dismiss the appeal.

(5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.

354—Powers of Court in special cases

(1) If it appears to the Full Court that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted.

(2) Where an appellant has been convicted of an offence and the jury could, on the information, have found him guilty of some other offence and, on the finding of the jury, it appears to the Full Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.

(3) Where on the conviction of the appellant the jury has found a special verdict and the Full Court considers that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Full Court may, instead of allowing the appeal, order such conclusion to be recorded as appears to the Court to be in law required by the verdict and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law.

354A—Right of appeal against ancillary orders

(1) A person against whom an ancillary order has been made may, in accordance with rules of court, appeal to the Full Court against that order.

(2) The Attorney-General may, in accordance with rules of court, appeal to the Full Court against an ancillary order or a decision not to make an ancillary order.

(3) An appeal under this section (whether relating to civil or criminal proceedings) may, if appropriate, be heard together with an appeal against sentence and may be brought as part of such an appeal.

(4) If an appeal against sentence and an appeal against an ancillary order are brought separately the Supreme Court may direct that they be heard together.

355—Revesting and restitution of property on conviction

(1) The operation of any order for the restitution of any property to any person, or with reference to any property or the payment of money, made on, or in connection with, a conviction on information and the operation, in case of any such conviction, of the provisions of section 24(1) of the Sale of Goods Act 1895 as to the revesting of the property in stolen goods on conviction shall (unless the court before which the conviction takes place directs to the contrary in any case in which in its opinion the title to the property is not in dispute) be suspended—

(a) in any case, until the expiration of ten days after the date of the conviction; and

(b) in cases where notice of appeal or permission to appeal is given within ten days after the date of conviction, until the determination of the appeal,

and, in cases where the operation of any such order or provisions is suspended until the determination of the appeal, the order or provisions (as the case may be) shall not take effect as to the property in question if the conviction is quashed on appeal, except by the special order of the Full Court. Provision may be made by rules of court for securing the safe custody of any property pending the suspension of the operation of any such order or provisions.

(2) The Full Court may, by order, annul or vary, or refuse to annul or vary, any order made on, or in connection with, a conviction for the restitution of any property to any person, or with reference to any property or the payment of money, whether the conviction or sentence is or is not quashed; and the order, if annulled, shall not take effect and, if varied, shall take effect as so varied.

356—Jurisdiction of Full Court

All jurisdiction and authority under any other Act in relation to questions of law arising in criminal trials which are vested in the judges of the Supreme Court or the Full Court of the Supreme Court as constituted by the Supreme Court Act 1935 shall be vested in the Full Court for the purposes of this Act.

356A—Enforcement of orders

Where a conviction or order has been affirmed, amended or made on appeal to the Full Court under this Part, the District Court has the same authority to enforce that conviction or order as if it had not been appealed against or had been made in the first instance.

357—Appeal to Full Court

(1) An appeal to the Full Court, or an application for permission to appeal to the Full Court under this Act, must be made in accordance with the appropriate rules of court.

(2) The Full Court may (either before or after the time allowed by the rules has expired) extend the time for making such an appeal or application.

359—Supplemental powers of Court

For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice—

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case; and

(b) order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Supreme Court or before any officer of the Supreme Court or justice of the peace or other person appointed by the Full Court for the purpose, and allow the admission of any depositions so taken as evidence before the Full Court; and

(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with such consent; and

(d) where any question arising on the appeal involves prolonged examination of documents or accounts or any scientific or local investigation which cannot, in the opinion of the Full Court, conveniently be conducted before the Court, order the reference of the question in the manner provided by rules of court for inquiry and report to a special commissioner appointed by the Court and act on the report of any such commissioner so far as it thinks fit to adopt it; and

(e) appoint any person with special expert knowledge to act as assessor to the Full Court in any case where it appears to the Court that such special knowledge is required for the proper determination of the case; and

(f) exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters; and

(g) issue any warrants necessary for enforcing the orders or sentences of the Court,

but in no case shall any sentence be increased by reason of, or in consideration of, any evidence that was not given at the trial.

361—Right of appellant to be present

(1) An appellant if he so desires shall, notwithstanding that he is in custody, be entitled to be present on the hearing of his appeal except where the appeal is on some ground involving a question of law alone, but in that case, and on an application for permission to appeal and on any proceedings preliminary or incidental to an appeal, he shall not be entitled to be present except where rules of court provide that he shall have the right to be present or where the Full Court gives him permission to be present.

(2) The power of the Full Court to pass any sentence under this Act may be exercised notwithstanding that the appellant is for any reason not present.

362—Director of Public Prosecutions to be represented

The Director of Public Prosecutions or counsel on his behalf shall appear for the Crown on every appeal to the Full Court under this Act, unless a private prosecutor in the case of a private prosecution undertakes the defence of the appeal, and provision shall be made by rules of court for the transmission to the Director of all such documents, exhibits and other things connected with the proceedings as he may require for the purposes of his duties under this section.

363—Costs of appeal

(1) On the hearing and determination of an appeal or new trial or any proceedings preliminary or incidental thereto under this Act, no costs shall be allowed on either side.

364—Admission of appellant to bail and custody when attending Court

(1) An appellant who is not admitted to bail shall, pending the determination of his appeal, be treated in such manner as may be directed by or under the Acts regulating prisons.

(2) The Full Court may, if it thinks fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal or, where a new trial is directed, until the commencement of the new trial.

(3) The time during which an appellant, pending the determination of his appeal or pending a new trial, is admitted to bail under this section shall not count as part of any term of imprisonment under his sentence. And, in the case of an appeal under this Act, any imprisonment of the appellant, whether it is under the sentence passed by the court of trial or the sentence passed by the Full Court, shall, subject to any directions which may be given by the Full Court, be deemed to be resumed or begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined and, if he is not in custody, as from the day on which he is received into prison under the sentence.

(4) Where a question of law is reserved under this Part, this section shall apply to the person in relation to whose conviction the question is reserved as it applies to an appellant.

(5) Provision shall be made under the Acts regulating prisons for the manner in which an appellant, when in custody, is to be brought to any place at which he is entitled to be present for the purposes of this Act, or to any place to which the Full Court or any judge of the Supreme Court may order him to be taken for the purposes of any proceedings of the Full Court, and for the manner in which he is to be kept in custody while absent from prison for any of those purposes.

365—Duties of registrar with respect to notices of appeal etc

(1) The registrar shall take all necessary steps for obtaining a hearing under this Act of any appeals or applications, notice of which is given to him under this Act, and shall obtain and lay before the Full Court in proper form all documents, exhibits and other things relating to the proceedings in the court before which the appellant or applicant was tried which appear necessary for the proper determination of the appeal or application.

(2) If it appears to the registrar that any notice of an appeal against a conviction does not show any substantial ground of appeal, the registrar may refer the appeal to the Full Court for summary determination and, where the case is so referred, the Court may, if it considers that the appeal is frivolous or vexatious and can be determined without adjourning it for a full hearing, dismiss the appeal summarily without calling on any persons to attend the hearing or to appear for the Crown.

(3) Any documents, exhibits or other things connected with the trial of any person on information shall be kept in the custody of the court of trial, in accordance with rules of court made for the purpose, for such time as may be provided by the rules and subject to such power as may be given by the rules for the conditional release of any such documents, exhibits or things from that custody.

(4) The registrar shall furnish the necessary forms and instructions in relation to notices of appeal or notices of application under this Act to any person who demands them and to officers of courts, keepers of gaols and such other officers or persons as he thinks fit, and the keeper of a gaol shall cause those forms and instructions to be placed at the disposal of prisoners desiring to appeal or to make any application under this Act and shall cause any such notice given by a prisoner in his custody to be forwarded on behalf of the prisoner to the registrar.

366—Notes of evidence on trial

(1) On any appeal, or application for permission to appeal, a transcript of the notes of the judge of the court of trial, or, where shorthand notes have been taken by direction of the judge, a transcript of the notes or any part thereof, shall be made, if the registrar so requests, and furnished to the registrar for the use of the Full Court or any judge thereof; and a transcript shall be furnished to any interested party on the payment of such charges as the Attorney-General may fix.

(2) The Attorney-General or Director of Public Prosecutions may also, if he thinks fit in any case, request a transcript of the notes to be made and furnished to him for his use.

(3) The cost of making any such transcript, where a transcript is requested to be made by the registrar, Attorney-General or Director of Public Prosecutions, shall be defrayed in accordance with scales of payment fixed for the time being by the Attorney-General out of moneys provided by Parliament for the purpose.

(4) Rules of court may make such provision as is necessary for the verification of the transcript.

367—Powers that may be exercised by a judge of the Court

The powers of the Full Court under this Act to give permission to appeal, to extend the time within which notice of appeal, or of an application for permission to appeal, may be given, to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without permission, to admit an appellant to bail and to direct that time spent in custody by an appellant pending determination of an appeal be counted as part of a term of imprisonment may be exercised by any judge of the Supreme Court in the same manner as they may be exercised by the Full Court, and subject to the same provisions, but, if the judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Full Court.



Division 5—References on petitions for mercy

369—References by Attorney-General

Nothing in this Part affects the prerogative of mercy but the Attorney-General, on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of a person on information or to the sentence passed on a person so convicted, may, if he thinks fit, at any time, either—

(a) refer the whole case to the Full Court, and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted; or

(b) if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to those judges for their opinion and those judges, or any three of them, shall consider the point so referred and furnish the Attorney-General with their opinion accordingly.





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