Leave for new charge, effect of
46M Leave for new charge, effect of
If under this Part the Court of Appeal gives leave to charge an acquitted accused with a new charge, only the person given leave, or another authorised officer, may commence a prosecution of the new charge.
A prosecution of a new charge cannot be commenced after —
2 months after the date on which leave is given; or
any longer period that the Court of Appeal may allow on an application made before the 2 months elapse.
The Court of Appeal must not allow a longer period under subsection (2)(b) unless it is satisfied —
the person given leave has taken and is taking reasonable steps to commence the prosecution as quickly as possible; and
there is a good reason why a longer period should be allowed.
In a prosecution of the new charge —
a court dealing with the new charge cannot stay it because it is an abuse of process unless it is an abuse of process for reasons unrelated to it being —
a charge of a serious offence the details of which are the same or substantially the same as those in charge A; or
a charge of some other serious offence of which, at trial A, the acquitted accused might have been convicted instead of offence A; or
a charge of an AOJ offence allegedly committed in or in connection with trial A;
and
the acquitted accused is not entitled —
on the grounds of the acquittal in trial A, to plead a defence under The Criminal Code section 17; or
to prove or refer to the acquittal in trial A;
and
the defence under The Criminal Code section 17 to the new charge that, but for this section, would exist by virtue of the acquittal in trial A does not apply to the new charge; and
the prosecutor is not entitled to refer to the fact that the Court of Appeal has given leave to charge the acquitted accused with the new charge or to any findings of the Court of Appeal in doing so.
If —
a new charge against an acquitted accused is the same or substantially the same as charge A; and
the acquitted accused was acquitted of charge A in trial A; and
trial A occurred in this State; and
the acquitted accused is convicted on the new charge,
the court dealing with the new charge must set aside the judgment of acquittal, entered in trial A, of charge A.
[Section 46M inserted: No. 9 of 2012 s. 4.]
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