1Short title
This Act may be cited as the Criminal Appeals Act 2004 1.
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Bill homepageThis Act may be cited as the Criminal Appeals Act 2004 1.
This Act comes into operation on a day fixed by proclamation 1.
This Act is to be read with the Criminal Procedure Act 2004.
The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act.
[Section 4A inserted: No. 20 of 2013 s. 41.]
If not defined in this Act, words and expressions in this Act have the same definitions as in the Criminal Procedure Act 2004 unless the contrary intention appears.
In this Act, unless the contrary intention appears —
appeal means an appeal under this Act or an application for leave to appeal under this Act;
appellant includes an applicant for leave to appeal or for an extension of time within which to appeal or apply for leave to appeal;
concluded, in relation to an appeal, means decided, dismissed or discontinued;
Court of Appeal Registrar has the meaning given by the Supreme Court Act 1935;
court of summary jurisdiction means a court, or a person, that is acting in circumstances in which it is a court of summary jurisdiction by virtue of another written law;
limiting term has the meaning given in the Criminal Law (Mental Impairment) Act 2023 section 9(1);
rules of court means rules of court made by the Supreme Court;
superior court means the Supreme Court or the District Court but not the Court of Appeal;
Supreme Court does not include the Court of Appeal.
[Section 4 amended: No. 10 of 2023 s. 298.]
This section applies if an accused is sentenced for an offence by a superior court having been convicted of the offence by a court of summary jurisdiction and committed to the superior court to be sentenced for the offence.
Any appeal against both the conviction by the court of summary jurisdiction and the sentence imposed by the superior court must be commenced and conducted under Part 3, despite Part 2.
If in one or more appeals there are appeals against both a conviction of an offence by a court of summary jurisdiction and the sentence imposed by a superior court for the offence, the appeals are to be dealt with together by the Court of Appeal under Part 3, despite Part 2.
In this Part, unless the contrary intention appears —
decision, of a court of summary jurisdiction, means any of the following —
a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3);
a decision ordering a permanent stay of a prosecution;
a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
a decision to acquit an accused of a charge;
a decision to acquit an accused of a charge on account of mental impairment;
a decision under the Criminal Law (Mental Impairment) Act 2023 section 29 that an accused is fit, or unfit, to stand trial;
an order under the Criminal Law (Mental Impairment) Act 2023 section 37(2)(a) discharging an accused from a charge or a refusal to make such an order;
a finding under the Criminal Law (Mental Impairment) Act 2023 section 41(2)(c);
an order under the Criminal Law (Mental Impairment) Act 2023 Part 5 or a refusal to make such an order;
the setting of a limiting term under the Criminal Law (Mental Impairment) Act 2023 section 50(2);
a sentence imposed, or order made, as a result of a conviction or acquittal;
a refusal to make an order that might be made as a result of a conviction or acquittal;
a decision as to costs;
a decision made under the Criminal Investigation Act 2006 section 151;
Supreme Court means the Supreme Court constituted by a single judge sitting in its General Division.
[Section 6 amended: No. 59 of 2006 s. 73; No. 10 of 2023 s. 299 and 313.]
A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
The Attorney General may appeal to the Supreme Court against a decision of a court of summary jurisdiction.
The following decisions of a court of summary jurisdiction cannot be the subject of an appeal under this Part —
a decision that is declared by an Act to be final or not appealable;
a decision to commit or not to commit an accused for trial or sentence;
a decision as to bail.
Except as provided by this section, no appeal lies against a decision of a court of summary jurisdiction.
Subsections (1), (2) and (4) are subject to any other written law and in particular to the Children’s Court of Western Australia Act 1988 Part 5.
This section does not affect the operation of the Bail Act 1982.
An appeal may be made under this Division on one or more of these grounds —
that the court of summary jurisdiction —
made an error of law or fact, or of both law and fact;
acted without or in excess of jurisdiction;
imposed a sentence, or set a limiting term, that was inadequate or excessive;
that there has been a miscarriage of justice.
An appeal may be made under this Division against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.
Despite subsections (1) and (2), no decision of, or proceedings before, a court of summary jurisdiction, nor any document in such proceedings, shall be held to be bad for want of form.
Without limiting subsection (3), a person cannot appeal against a decision —
on the ground that the person had not received a prosecution notice; or
on a ground that relates to any amendment of a prosecution notice,
if the person was present at the hearing at which the decision was made and did not then object on that ground.
[Section 8 amended: No. 10 of 2023 s. 300.]
The leave of the Supreme Court is required for each ground of appeal in an appeal under this Division.
After an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
Unless the Supreme Court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
The Supreme Court may decide whether or not to give leave to appeal —
with or without written or oral submissions from the parties to the appeal;
before or at the hearing of, or when giving judgment on, the appeal.
As soon as practicable after the Supreme Court gives leave to appeal against a decision, it must notify the court of summary jurisdiction that made the decision.
An appeal under this Division must be commenced and conducted in accordance with this Division and rules of court.
An appeal under this Division must be commenced by lodging with the Supreme Court an application for leave to appeal that sets out the grounds of the appeal.
An appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise.
If the date on which a person is sentenced for an offence is not the date on which the person is convicted of the offence, the time in subsection (3) for an appeal against either the conviction or the sentence or both runs from the date of sentencing.
On commencing an appeal, the appellant must serve a copy of the application for leave to appeal on —
[(a) deleted]
the other party or other parties to the proceedings before the court of summary jurisdiction.
The Supreme Court may at any time order the appellant to serve a copy of the application for leave to appeal on any other person the court thinks fit.
As soon as practicable after it is served under subsection (5), a court of summary jurisdiction must give the exhibits in the case to the Supreme Court.
[Section 10 amended: No. 5 of 2008 s. 26.]
This section applies when the Supreme Court gives leave to appeal against a decision unless and to the extent that an order made under section 12 provides otherwise.
After leave to appeal against a decision is given and until the appeal is concluded, no warrant or order to enforce the decision shall be issued, and no action to enforce the decision shall be taken, except to enforce a sentence or order referred to in subsection (6).
Any disqualification from holding or obtaining a licence to drive a vehicle under a road law as defined in the Road Traffic (Administration) Act 2008 section 4, or under the Sentencing Act 1995 Part 15, in respect of a conviction that is the subject of an appeal is suspended until the appeal is concluded.
Any period during which the disqualification is so suspended must not be taken into account in calculating the period of the disqualification.
Subject to subsection (6) and the Fines, Penalties and Infringement Notices Enforcement Act 1994 section 101B, any sentence imposed, or any other order made, under the Sentencing Act 1995, the Young Offenders Act 1994, or any other written law, is suspended until the appeal is concluded.
Subsection (5) does not apply to —
a sentence of imprisonment, whether or not it is suspended under the Sentencing Act 1995 Part 11 or is indefinite imprisonment imposed under Part 14 of that Act; and
a sentence of detention under the Young Offenders Act 1994; and
an order of forfeiture; and
a custody order or a community supervision order under the Criminal Law (Mental Impairment) Act 2023.
[Section 11 amended: No. 8 of 2012 s. 75; No. 10 of 2023 s. 301.]
12. Sentences etc., Supreme Court may suspend etc.
At any time after an appeal under this Division is commenced against a decision of a court of summary jurisdiction, the Supreme Court may make any order it thinks fit that suspends or continues in effect until the appeal is concluded —
the decision;
any sentence imposed, or order made, by the court of summary jurisdiction as a result of the decision;
any statutory consequence of the decision.
The Supreme Court may amend or cancel an order made under this section at any time.
An order may be made under this section before or after the Supreme Court decides whether or not to give leave to appeal.
If the Supreme Court makes, amends or cancels any such order, it must give a copy of the order —
to the court of summary jurisdiction concerned; and
if the order relates to the statutory consequence of the decision being appealed, to any person who under a written law is required to register the statutory consequence.
Despite subsections (1) and (2), if an appellant or respondent is serving a sentence of imprisonment —
the sentence must not be suspended unless he or she is granted bail under the Bail Act 1982; and
he or she must not be released from custody until he or she becomes entitled to be released under that Act.
Despite subsections (1) and (2), if an appellant or respondent is subject to a custody order or community supervision order under the Criminal Law (Mental Impairment) Act 2023, the order must not be suspended under this section.
If an appeal is commenced against a decision involving or giving rise to the imposition of a fine (as defined in the Fines, Penalties and Infringement Notices Enforcement Act 1994 section 28(1)), an order cannot be made under this section.
An order made under this section has effect despite section 11.
[Section 12 amended: No. 10 of 2023 s. 302.]
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