Section 319A of the Criminal Procedure Act 2009 (Vic) permits the Court of Appeal to refer factual disputes to the Trial Division for a reference determination, and the referral judge should make findings of fact (not merely take evidence) where witness credibility is in issue. Where an applicant alleges both trial unfairness from non-disclosure and deliberate abuse of process, the scope of the referral and cross-examination should not be unduly confined, as the abuse of process ground calls for condemnation regardless of material effect on trial fairness.
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