Criminal Appeals Act 2004

This section applies in the case of an appeal commenced under section 25A against a decision or finding referred to in paragraph (a) or (b) of that section.

Unless under subsection (3) the Court of Appeal allows the appeal, it must dismiss the appeal.

The Court of Appeal may allow the appeal if, in its opinion —

the decision or finding should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or

the decision or finding should be set aside because of a wrong decision on a question of law by the judge; or

there was a miscarriage of justice.

Despite subsection (3), even if a ground of appeal might be decided in favour of the appellant, the Court of Appeal may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred.

If an appeal against a decision referred to in section 25A(a) is allowed, the Court of Appeal must set aside the decision as to fitness and must do 1 or more of the following —

order that the question of fitness be dealt with again by the court that made the decision, with or without orders to that court —

as to how or by whom it is to be constituted; and

as to how it must deal with the question;

decide the question of fitness;

order a trial or a new trial;

order that a special proceeding take place under the Criminal Law (Mental Impairment) Act 2023 Part 3 Division 3.

If an appeal against a finding referred to in section 25A(b) is allowed, the Court of Appeal must set aside the finding that the accused committed the offence (offence A) and must —

enter a judgment of acquittal (other than on account of mental impairment) of offence A; or

order that a special proceeding take place under the Criminal Law (Mental Impairment) Act 2023 Part 3 Division 3; or

if —

the accused could have been found to have committed some other offence (offence B) instead of offence A; and

the court is satisfied that the judge must have been satisfied, on the evidence available, of facts that prove the accused did the acts or made the omissions that constitute offence B,

if the court is satisfied that the accused should have been found not guilty of offence A on account of mental impairment — enter a judgment of acquittal of offence A on account of mental impairment and deal with the accused under the Criminal Law (Mental Impairment) Act 2023; or

if —

the accused could have been found to have committed some other offence (offence B) instead of offence A; and

the court is satisfied that the judge must have been satisfied, on the evidence available, of facts that prove the accused did the acts or made the omissions that constitute offence B; and

the court is satisfied that the accused should have been found not guilty of offence B on account of mental impairment,