Section 41(4)(b) of the Criminal Appeals Act 2004 (WA) excludes the double jeopardy principle from prosecution appeals against sentence, but the court was divided on whether it operates retrospectively. McLure JA held it was substantive and did not apply retrospectively; Miller JA held it was procedural and applied immediately; Murray AJA gave it a narrow interpretation leaving general prosecution appeal principles substantially unaffected. The majority held cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 did not apply to offences created after the transitional provisions commenced, though this was subsequently overruled by a five-judge bench in Yates. An intermediate appellate court has no inherent power to reopen perfected orders, and the majority held s 37 of the Sentencing Act does not apply to the Court of Appeal.
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