Criminal Appeal Act 1912

This Act may be cited as the Criminal Appeal Act 1912.

In this Act, unless the context or subject-matter otherwise requires or indicates—

Conviction includes the following—

a finding following an inquiry within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 by a court that a person is unfit to be tried for an offence,

a finding of a court following a special hearing referred to in section 59(1)(c) or (d) of that Act.

Court means the Court of Criminal Appeal established by this Act.

Court of trial means any court from whose finding, sentence, order, or other determination, a person is by this Act entitled to appeal or to apply for leave to appeal.

Indictment includes any information presented or filed as provided by law for the prosecution of offenders.

Prescribed means prescribed by rules of court made under the authority of this Act.

Registrar means the registrar of the court.

Sentence means—

any order made by the court of trial on convicting a person of an offence, including—

any sentence of imprisonment (including any sentence of imprisonment the subject of an intensive correction order and any sentence of imprisonment whose execution is suspended), and

any community correction order, conditional release order or community service order, and

any good behaviour bond, and

any fine,

imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999, or

any order made by the court of trial 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

any order made by the court of trial in respect of a person under section 12 or 17A of the Crimes (Sentencing Procedure) Act 1999 on convicting the person of an offence, or

any order made by the court of trial, after a person’s conviction for an offence, revoking a good behaviour bond and any order made by the court of trial as a consequence of the revocation of the good behaviour bond, or

any order made by the court of trial imposing a limiting term of imprisonment on a person following a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and any other order or penalty made or imposed by the court of trial in respect of a person following a special hearing under that Act, or

any order made by the court of trial in respect of a person following a special verdict of act proven but not criminally responsible, or

any direction for compensation made by the court of trial in respect of a person under section 94 (Directions for compensation for injury) or 97 (Directions for compensation for loss) of the Victims Support Act 2013, or

any order for restitution made by the court of trial in respect of a person under section 43 of the Criminal Procedure Act 1986, or

any order for the payment of costs made by the court of trial in respect of a person under Division 3 or 4 of Part 5 of Chapter 4 of the Criminal Procedure Act 1986, or

any child protection registration order made under section 3D of the Child Protection (Offenders Registration) Act 2000, or

(Repealed)

and the power of the Court of Criminal Appeal to pass any such sentence includes power to make any such order or direction.

Note.

Part 29 of Schedule 2 to the Crimes (Sentencing Procedure) Act 1999 provides that certain home detention orders, community service orders and good behaviour bonds are taken to be intensive correction orders, community correction orders or conditional release orders.

Special verdict of act proven but not criminally responsible has the same meaning as in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

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

For the purposes of this Act, a sentence is imposed or passed on a person on conviction or on a finding of guilt even if it is imposed or passed after the conviction or finding of guilt or as a result of re-sentencing.

For the purposes of this Act, a sentence imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999 includes a provisional sentence and a final sentence within the meaning of Division 2A of Part 4 of that Act.

(Repealed)

The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by 3 or more Judges of the Supreme Court or in any other way provided by this Act.

The Chief Justice is to make arrangements, subject to other provisions of this Act, for the transaction of the business of the court, including the constitution of the court for particular proceedings.

Without limiting subsection (1AA), the Chief Justice may (with the consent of the Chief Judge concerned) direct that the Chief Judge of the Land and Environment Court or the Chief Judge of the District Court (or both) act as Judges of the Court of Criminal Appeal in relation to proceedings of that Court.

The following provisions apply to and in respect of a Chief Judge who acts as a Judge of the Court of Criminal Appeal in relation to proceedings pursuant to a direction given by the Chief Justice under subsection (1A)—

the Chief Judge is taken to be a Judge of the Supreme Court for the purposes of subsection (1),

the Chief Judge has, while acting as a Judge of the Court of Criminal Appeal, all the powers, authorities, privileges and immunities of a Judge of the Supreme Court,

the Chief Judge may attend the sittings of the Court of Criminal Appeal for the purpose of giving judgment in, or otherwise completing, any proceedings which have been heard by the Court while the Chief Judge was acting as a Judge of the Court even if the Chief Judge is no longer acting as a Judge of the Court,

the Chief Judge is not, while receiving remuneration as a Chief Judge, entitled to remuneration for acting as a Judge of the Court of Criminal Appeal,

any service of the Chief Judge while acting as a Judge of the Court of Criminal Appeal is, for the purposes of the Act under which the Chief Judge was appointed and the Judges’ Pensions Act 1953, taken to be service as the Chief Judge of the court concerned,

nothing in this Act or any other law requires the Chief Judge to devote the whole of his or her time to the duties of acting as a Judge of the Court of Criminal Appeal.

More than one sitting of the court may be held at the same time.

A registrar and such other officers as may be required for carrying out this Act may be employed in the Public Service under the Government Sector Employment Act 2013.

The Prothonotary of the Supreme Court is to be the first registrar of the Court of Criminal Appeal.

A registrar of the Supreme Court may, subject to the rules, exercise the powers of a registrar of the Court of Criminal Appeal and, when exercising those powers, is taken to be a registrar of the Court of Criminal Appeal.

An officer of the Supreme Court may, subject to the rules, exercise the powers of an officer of the Court of Criminal Appeal and, when exercising those powers, is taken to be an officer of the Court of Criminal Appeal.

A person convicted on indictment may appeal under this Act to the court—

against the person’s conviction on any ground which involves a question of law alone, and

with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and

with the leave of the court against the sentence passed on the person’s conviction.

For the purposes of this Act, a person for whom a special verdict of act proven but not criminally responsible is entered is, if the defence of mental health impairment or cognitive impairment was not set up as a defence by the person, taken to be a person convicted and an order to keep the person in custody is taken to be a sentence.

A person—

convicted of an offence, or

against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or

in whose favour an order for costs is made,

by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

An appeal against an order referred to in subsection (1) (c) may only be made with the leave of the Court of Criminal Appeal.

For the purposes of this Act, a person for whom a special verdict of act proven but not criminally responsible is entered is, if the defence of mental health impairment or cognitive impairment was not set up as a defence by the person, taken to be a person convicted and an order to keep the person in custody is taken to be a sentence.

(Repealed)

The Court of Criminal Appeal in proceedings before it on an appeal under this section may—

confirm the determination made by the Supreme Court in its summary jurisdiction, or

order that the determination made by the Supreme Court in its summary jurisdiction be vacated and—

make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal, or

order a new trial in such manner as the Court of Criminal Appeal thinks fit.

Section 7 (4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5 (1).

Provisions shall be made by rules of court for detaining an appellant on an appeal under subsection (1) who has been sentenced to imprisonment until the appeal has been determined, or for ordering the appellant into any former custody.

This section applies to and in respect of the District Court in its summary jurisdiction in the same way as it applies to and in respect of the Supreme Court in its summary jurisdiction.

Section 5AA applies to and in respect of a person—

convicted of an offence, or

against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or

in whose favour an order for costs is made,

by the Land and Environment Court in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to the Land and Environment Court.

Section 5AA applies to and in respect of a person—

convicted of an offence, or

against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or

in whose favour an order for costs is made,

by a Court of Coal Mines Regulation in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to a Court of Coal Mines Regulation.

Section 5AA applies to and in respect of a person convicted of an offence by the Supreme Court or District Court in the exercise of its jurisdiction under Division 7 of Part 3 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as it applies to a person referred to in section 5AA (1).

For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the District Court.

The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct unless—

the judge considers that the appeal should be dealt with by the full court and notifies the Chief Justice accordingly, or

an appeal is lodged under this Act in relation to the related indictable offence.

At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.

Section 5AA applies to and in respect of a person sentenced by the Drug Court in relation to a sentence imposed by the Drug Court—

in the exercise of its jurisdiction under section 7D, 7E or 12 of the Drug Court Act 1998, or

in the exercise under section 24 (1) (a) of the Drug Court Act 1998 of the criminal jurisdiction of the District Court, or

in the exercise under section 24 (1) (b) of the Drug Court Act 1998 of the criminal jurisdiction of the Local Court,

in the same way as it applies to a person referred to in section 5AA (1).

For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the Drug Court.

The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised—

in relation to an appeal against a sentence for an indictable offence—by such 2 or 3 judges of the Supreme Court as the Chief Justice may direct, or

in relation to an appeal against a sentence for a summary offence—by such single judge of the Supreme Court as the Chief Justice may direct unless the judge, on the application of either party or of his or her own motion, considers that the appeal raises matters of principle or it is otherwise in the interests of justice for the appeal to be dealt with by the full Court of Criminal Appeal and notifies the Chief Justice accordingly, in which case the appeal is to be heard and determined by such 3 or more judges of the Supreme Court as the Chief Justice may direct.

Despite section 12 (4) of the Drug Court Act 1998, on an appeal against a final sentence imposed by the Drug Court under section 12 of that Act, the Court of Criminal Appeal may pass a more severe sentence than the initial sentence imposed on the relevant offender under section 7A or 7B of that Act.