Justice Legislation Amendment (Criminal Appeals) Act 2019

Authorised by the Chief Parliamentary Counsel Authorised Version i Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 Part 2—Amendment of Children, Youth and Families Act 2005 4 Division 1—Appeal against final order made by the Family Division of the Children's Court 4 3 Section 328 repealed 4 4 Appeals to be heard in open court 4 Division 2—Appeal from summary hearing 4 5 Proceedings for breach of sentence 4 6 New Division 1AA of Part 5.4 inserted 4 7 Division 1 of Part 5.4 substituted 5 8 Determination of DPP appeal 16 9 Section 430A substituted 19 10 Bail pending appeal 21 11 New sections 430BA to 430BE inserted 21 12 New section 430CA inserted 26 13 Failure to appear 29 14 New sections 430EA and 430EB inserted 32 15 New section 430GA inserted 33 16 Divisions 6 and 7 of Part 5.4 repealed 35 17 New section 632 inserted 35 Division 3—Statute law revision 36 18 Statute law revision 36 Part 3—Amendment of Criminal Procedure Act 2009 37 Division 1—Appeal from summary hearing 37 19 New Division 1AA of Part 6.1 inserted 37 20 Division 1 of Part 6.1 substituted 37 21 Determination of DPP's appeal 50 22 Section 264 substituted 53 -- 1 of 89 -- Section Page ii Authorised by the Chief Parliamentary Counsel 23 Bail pending appeal 55 24 New sections 265A to 265E inserted 56 25 New section 266A inserted 61 26 Section 267 substituted 63 27 New sections 268A and 268B inserted 66 28 Appeal to County Court authorised by other Acts 68 29 New section 271A inserted 68 30 Sections 283 to 286 repealed 70 31 Consequential amendments—cross-references 70 32 Consequential amendments—references to appellate courts 70 Division 2—Powers of Court of Appeal 72 33 Definitions 72 34 New section 319A inserted 72 Division 3—Second or subsequent appeal against conviction for indictable offence 75 35 New Part 6.4 inserted in Chapter 6 75 36 No costs on appeal to Court of Appeal or on a new trial 82 Division 4—Transitional provisions 83 37 New sections 453 and 454 inserted 83 Part 4—Amendment of other Acts 85 38 Consequential amendments—Supreme Court Act 1986 85 Part 5—Repeal of amending Act 86 39 Repeal of amending Act 86 ═════════════ Endnotes 87 1 General information 87 -- 2 of 89 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Justice Legislation Amendment (Criminal Appeals) Act 2019† No. 44 of 2019 [Assented to 19 November 2019] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The purposes of this Act are— (a) to amend the Children, Youth and Families Act 2005 to abolish de novo appeals against final orders made by the Family Division of the Children's Court; and Victoria -- 3 of 89 -- Part 1—Preliminary Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 2 Authorised by the Chief Parliamentary Counsel (b) to amend the Criminal Procedure Act 2009— (i) to enable the Court of Appeal to refer certain matters to the Trial Division of the Supreme Court or to the County Court for the making of a reference determination during an appeal or application for leave to appeal to the Court of Appeal; and (ii) to provide a second or subsequent right of appeal against conviction in certain circumstances; and (c) to amend both the Children, Youth and Families Act 2005 and the Criminal Procedure Act 2009— (i) to abolish de novo appeals against convictions recorded in summary proceedings and to provide instead for those appeals to be by way of rehearing; and (ii) to abolish de novo appeals against sentences imposed in summary proceedings and to provide instead for a different kind of appeal against those sentences; and (iii) to abolish appeals against sentences of imprisonment imposed on appeal from the Magistrates' Court or the Children's Court; and (d) to make consequential amendments to the Supreme Court Act 1986. 2 Commencement (1) This Part and Division 3 of Part 2 come into operation on the day after the day on which this Act receives the Royal Assent. -- 4 of 89 -- Part 1—Preliminary Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 3 Authorised by the Chief Parliamentary Counsel (2) Subject to subsections (3) and (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision of Division 1 or 2 of Part 2 or Division 1 of Part 3 does not come into operation before 3 July 2021, it comes into operation on that day. (4) If a provision of this Act (other than a provision referred to in subsection (3)) does not come into operation before 11 October 2020, it comes into operation on that day. -- 5 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 4 Authorised by the Chief Parliamentary Counsel Part 2—Amendment of Children, Youth and Families Act 2005 Division 1—Appeal against final order made by the Family Division of the Children's Court 3 Section 328 repealed Section 328 of the Children, Youth and Families Act 2005 is repealed. 4 Appeals to be heard in open court In section 330(1) of the Children, Youth and Families Act 2005 omit "328 or". Division 2—Appeal from summary hearing 5 Proceedings for breach of sentence In section 423(9) of the Children, Youth and Families Act 2005, for "426(5)" substitute "426C(2)". 6 New Division 1AA of Part 5.4 inserted After the heading to Part 5.4 of the Children, Youth and Families Act 2005 insert— "Division 1AA—Preliminary 423A When a recording is unavailable In this Part, a reference to a recording, or a part of a recording, that is unavailable is a reference to a recording, or a part of a recording, that— (a) is indecipherable, destroyed or otherwise irretrievable; or (b) was never made.". -- 6 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 5 Authorised by the Chief Parliamentary Counsel 7 Division 1 of Part 5.4 substituted For Division 1 of Part 5.4 of the Children, Youth and Families Act 2005 substitute— "Division 1—Appeal by offender to the County Court or Trial Division of the Supreme Court 424 Right of appeal and leave to appeal (1) Subject to subsections (2) and (3), a person convicted of an offence by the Children's Court in a summary proceeding in the Criminal Division may appeal to the County Court against either or both of— (a) the conviction; and (b) the sentence. Note See the definitions of conviction and sentence in section 3(1). (2) Leave to appeal is required from the County Court for an appeal against conviction if the person was convicted following a plea of guilty. (3) If the Children's Court was constituted by the President or the Chief Magistrate who is a dual commission holder, the appeal or application for leave to appeal is to be made to the Trial Division of the Supreme Court. 425 How appeal or application for leave to appeal is commenced (1) An appeal under section 424, or an application for leave to appeal under that section, is commenced by filing a notice of appeal or an application for leave to appeal, as the case requires, with a registrar of -- 7 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 6 Authorised by the Chief Parliamentary Counsel the Children's Court at any venue of the Children's Court within 28 days after the day on which the sentence of the Children's Court is imposed. (2) A copy of the notice of appeal or the application for leave to appeal, as the case requires, must be served on the respondent in accordance with section 392 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice or application is filed. (3) A notice of appeal or application for leave to appeal must— (a) state whether the appeal is against— (i) conviction; or (ii) sentence; or (iii) both conviction and sentence; and (b) state whether the appellant or applicant was convicted following a plea of guilty and, if so, whether the Children's Court gave a sentence indication; and (c) be in the form, and include the information, prescribed by the rules of the appellate court. (4) A notice of appeal or an application for leave to appeal must also include an undertaking signed by the appellant or applicant, in the manner prescribed by the rules of the appellate court— (a) to appear at the appellate court to proceed with the appeal or application at a place and on a day fixed or to be fixed by the registrar of the County Court or the Prothonotary (as the case requires) and to appear at the appellate -- 8 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 7 Authorised by the Chief Parliamentary Counsel court for the duration of the appeal or application; and (b) to give written notice without delay to the registrar of the County Court or the Prothonotary, as the case requires, of any change to the following information as appearing in the notice of appeal or application for leave to appeal— (i) the address of the appellant or applicant; (ii) other information prescribed in the rules of the appellate court. (5) A notice of appeal or an application for leave to appeal filed under this section must be transmitted to the appellate court. 425A Summary of appeal notice (1) Within 28 days after filing a notice of appeal or an application for leave to appeal against the conviction imposed by the Children's Court, the appellant or applicant must file a summary of appeal notice in the appellate court. (2) A summary of appeal notice must— (a) state the general grounds of appeal or application; and (b) be in the form prescribed by the rules of the appellate court. 425B Determination of application for leave to appeal (1) On an application for leave to appeal, the appellate court may only grant leave to appeal if satisfied that it is in the interests of justice to do so. -- 9 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 8 Authorised by the Chief Parliamentary Counsel (2) For the purposes of subsection (1), the appellate court may have regard to the following factors— (a) the circumstances in which the person entered the plea; (b) the time taken to apply for leave to appeal the conviction; (c) any other matter that the court considers relevant. 426 Determination of appeal—appeal against conviction (1) In determining an appeal against conviction under section 424, the appellate court must determine the appeal by way of rehearing— (a) on either— (i) the evidence given before the Children's Court in the summary hearing; or (ii) if the whole of the recording of that evidence is unavailable, the evidence received under section 430BD(2); and (b) on the evidence received in the appeal under section 430BE (if any); and (c) having regard to the reasons of the Children's Court in the summary hearing. Note Section 430BC provides for the appellate court to make orders for the provision of transcripts and reasons. (2) If the appellate court allows an appeal against conviction under section 424, the court must— -- 10 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 9 Authorised by the Chief Parliamentary Counsel (a) set aside the conviction that was the subject of the appeal; and (b) either— (i) remit the proceeding in accordance with subsection (3); or (ii) deal with the appeal in accordance with subsection (4). (3) On allowing an appeal against conviction for which leave was required under section 424(2), the appellate court may remit the proceeding to the Children's Court with or without any direction in law. Note Section 426A provides further for these remittals. (4) On allowing any appeal against conviction under section 424, whether or not leave was required under section 424(2), the appellate court may— (a) dismiss the charge for the offence that was the subject of the appeal; and (b) if— (i) at any time in the summary hearing there was before the Children's Court a charge against the appellant other than the charge for the offence that is the subject of the appeal; and (ii) the appellant could have been found guilty of that other charge; and (iii) the appellate court is satisfied, beyond reasonable doubt, that the appellant is guilty of the offence -- 11 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 10 Authorised by the Chief Parliamentary Counsel that is the subject of that other charge— reinstate that other charge (if necessary) and enter a judgment of conviction for that offence and impose a sentence for that offence that is no more severe than the sentence that was imposed for the offence that was the subject of the appeal; and (c) vary a sentence that— (i) was imposed for an offence that was not the subject of the appeal at or after the time when the appellant was sentenced for the offence that was the subject of the appeal; and (ii) took into account the sentence for the offence that was the subject of the appeal; and (d) exercise any power which the Children's Court could have exercised. (5) For the purposes of subsection (4), the appellate court may, despite anything to the contrary in this Act, make a probation order, youth supervision order or youth attendance order in respect of a person even though at the time of making that order the person is of or above the age of 19 years but under 21 years. (6) The power under subsection (4)(c) to vary the sentence referred to in that provision may still be exercised even if the sentence imposed by the Children's Court is an aggregate sentence of detention. -- 12 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 11 Authorised by the Chief Parliamentary Counsel (7) If, at the conclusion of an appeal being dealt with under subsection (4), the appellant remains convicted of more than one offence, the appellate court may impose any sentences that the Children's Court could have imposed for those offences. Note This section previously provided for appeals in which charges were reheard de novo. The Justice Legislation Amendment (Criminal Appeals) Act 2019 abolished those de novo appeals and replaced them with these appeals, which instead are by way of rehearing on the evidence given before the Children's Court. (Additionally, sections 430BD and 430BE provide for the receipt of further evidence in certain circumstances.) 426A Remittal following determination of appeal against conviction (1) This section applies if, on an appeal against conviction under section 424, the appellate court remits the proceeding to the Children's Court under section 426(3). (2) On the proceeding being remitted— (a) the following charges are reinstated— (i) each charge for which a conviction was set aside on the appeal; and (ii) each charge described in subsection (3); and (b) the following sentences are set aside— (i) each sentence imposed by the Children's Court in respect of a conviction that was set aside on appeal; and -- 13 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 12 Authorised by the Chief Parliamentary Counsel (ii) each sentence imposed by the Children's Court on any other charge in the summary hearing from which the appeal was brought. (3) A charge is reinstated under subsection (2)(a)(ii) if— (a) it was contained in a charge-sheet that also contained a charge for which a conviction was set aside on the appeal; and (b) in the summary hearing, the charge was not struck out for non-compliance with section 344A; and (c) at the conclusion of the appeal, the appellant does not remain convicted of the charge. (4) The Children's Court must— (a) summarily hear and determine each charge reinstated under subsection (2)(a); and (b) re-sentence the offender on each charge for which the sentence is set aside under subsection (2)(b)(ii). 426B Determination of appeal—appeal against sentence (1) In determining an appeal against sentence under section 424, the appellate court must determine the appeal on the evidence and other material that was before the Children's Court for the sentencing hearing. Note Subsection (3) also permits the appellate court to consider other matters. -- 14 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 13 Authorised by the Chief Parliamentary Counsel (2) Without limiting subsection (1), the appellate court may consider the following— (a) if the appellant pleaded guilty, the agreed statement of facts on which the Children's Court relied to impose the sentence that is the subject of the appeal; (b) the criminal record of the appellant, if any; (c) any documentary evidence that was before the Children's Court for the sentencing hearing; (d) if oral evidence was taken from a witness or the appellant at the sentencing hearing, a transcript of that evidence. (3) The appellate court may also consider— (a) other evidence, material or information that— (i) relates to matters that occurred after the Children's Court sentenced the appellant; and (ii) concerns the circumstances of the appellant; and (b) any submissions made during the hearing of the appeal; and (c) if an appeal was also brought against the conviction to which the sentence relates, the evidence received in that appeal under section 430BD or 430BE (if any); and (d) if there is a factual issue in dispute that the court considers relevant and necessary to determining the appeal, -- 15 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 14 Authorised by the Chief Parliamentary Counsel any other evidence given before the Children's Court in the summary hearing. (4) For the purposes of subsections (1), (2) and (3), the appellate court may inform itself of what evidence or other material was before the Children's Court in any way it sees fit. (5) In determining an appeal against sentence under section 424— (a) the appellate court must allow the appeal if it finds that there are substantial reasons to impose a different sentence from that imposed by the Children's Court; and (b) must dismiss the appeal in any other case. (6) For the purposes of subsection (5), in determining whether there are substantial reasons to impose a different sentence the appellate court must have regard to— (a) the reasons of the Children's Court in the summary hearing; and (b) the need for a just and fair outcome. (7) The determination of substantial reasons for the purposes of this section— (a) does not require a specific error of law to be identified; and (b) is not satisfied merely by the identification of a deficiency in the sentencing remarks made by the magistrate or the President (as the case requires) in the Children's Court in the summary hearing; and -- 16 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 15 Authorised by the Chief Parliamentary Counsel (c) requires more than it being merely arguable that a different sentence should be imposed; and (d) does not require the appellate court to be satisfied that the sentence was unreasonable or plainly unjust. (8) If the appellate court allows an appeal against sentence under section 424, the court— (a) must set aside the sentence; and (b) subject to subsection (9), may impose any sentence which the court considers appropriate and which the Children's Court could have imposed; and (c) may exercise any power which the Children's Court could have exercised. (9) If an appellant appeals under section 424 against an order made under section 363, 365 or 367, the appellate court may— (a) dismiss the charge against the appellant; or (b) make an order in the same terms as the order of the Children's Court— but must not impose any other sentence. Note Orders under sections 363, 365 and 367 are orders for non-accountable undertakings, accountable undertakings and good behaviour bonds respectively. (10) For the purposes of subsection (8), the appellate court may, despite anything to the contrary in this Act, make a probation order, youth supervision order or youth attendance order in respect of a person even though at the time of making that order the person is -- 17 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 16 Authorised by the Chief Parliamentary Counsel of or above the age of 19 years but under 21 years. 426C Sentence imposed on appeal (1) The appellate court may backdate a sentence imposed under section 426 or 426B to a date not earlier than the date of the sentence of the Children's Court that was set aside on the appeal. (2) A sentence imposed under section 426 or 426B is for all purposes to be regarded as a sentence of the appellate court. 426D Warning that more severe sentence may be imposed If, on an appeal under section 424, the appellate court is considering imposing a more severe sentence than that imposed by the Children's Court, the appellate court must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Children's Court.". 8 Determination of DPP appeal (1) For section 429(1) of the Children, Youth and Families Act 2005 substitute— "(1) In determining an appeal under section 427, the appellate court must determine the appeal on the evidence and other material that was before the Children's Court for the sentencing hearing. Note Subsection (1B) also permits the appellate court to consider other matters. -- 18 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 17 Authorised by the Chief Parliamentary Counsel (1A) Without limiting subsection (1), the appellate court may consider the following— (a) if the respondent pleaded guilty, the agreed statement of facts on which the Children's Court relied to impose the sentence that is the subject of the appeal; (b) the criminal record of the respondent, if any; (c) any documentary evidence that was before the Children's Court for the sentencing hearing; (d) if oral evidence was taken from a witness or the respondent at the sentencing hearing, a transcript of that evidence. (1B) The appellate court may also consider— (a) other evidence, material or information that— (i) relates to matters that occurred after the Children's Court sentenced the respondent; and (ii) concerns the circumstances of the respondent; and (b) any submissions made during the hearing of the appeal; and (c) if there is a factual issue in dispute that the appellate court considers relevant and necessary to determining the appeal, any other evidence given before the Children's Court in the summary hearing. -- 19 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 18 Authorised by the Chief Parliamentary Counsel (1C) For the purposes of subsections (1), (1A) and (1B), the appellate court may inform itself of what evidence or other material was before the Children's Court in any way it sees fit. (1D) In determining an appeal under section 427— (a) the appellate court must allow the appeal if it finds that there are substantial reasons to impose a different sentence from that imposed by the Children's Court; and (b) must dismiss the appeal in any other case. (1E) For the purposes of subsection (1D), in determining whether there are substantial reasons to impose a different sentence the appellate court must have regard to— (a) the reasons of the Children's Court in the summary hearing; and (b) the need for a just and fair outcome. (1F) The determination of substantial reasons for the purposes of this section— (a) does not require a specific error of law to be identified; and (b) is not satisfied merely by the identification of a deficiency in the sentencing remarks given by the magistrate or the President (as the case requires) in the Children's Court in the summary hearing; and (c) requires more than it being merely arguable that a different sentence should be imposed; and -- 20 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 19 Authorised by the Chief Parliamentary Counsel (d) does not require the appellate court to be satisfied that the sentence was unreasonable or plainly unjust.". (2) For section 429(2) of the Children, Youth and Families Act 2005 substitute— "(2) If the appellate court allows an appeal referred to in subsection (1), the court— (a) must set aside the sentence; and (b) may impose any sentence which the court considers appropriate and which the Children's Court could have imposed; and (c) may exercise any power which the Children's Court could have exercised.". 9 Section 430A substituted For section 430A of the Children, Youth and Families Act 2005 substitute— "430A Stay of sentence (1) This section applies— (a) if a person— (i) applies under section 424 for leave to appeal against conviction; or (ii) appeals under section 424 against a conviction or a sentence or both; and (b) whether or not the person is in custody because of the relevant sentence, being— (i) if the person is appealing against a conviction, or applying for leave to appeal against a conviction, the -- 21 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 20 Authorised by the Chief Parliamentary Counsel sentence in respect of that conviction; or (ii) if the person is appealing against a sentence, that sentence. (2) The appeal or application for leave to appeal operates as a stay of the relevant sentence (but not any conviction). (3) The stay of the relevant sentence operates from— (a) if the person is not in custody because of that sentence, the time when the person files the notice of appeal or application for leave to appeal and signs the undertaking referred to in section 425(4); or (b) if the person is in custody because of that sentence, the time when— (i) the person files the notice of appeal or application for leave to appeal and signs the undertaking referred to in section 425(4); and (ii) the person enters bail, if bail is granted under section 430B. (4) The stay of the relevant sentence operates until the determination of the appeal or the refusal of the application for leave to appeal. (5) To avoid doubt, if— (a) an Act provides that— (i) an order may be appealed against as if it were a sentence; or (ii) an order may be appealed in the same manner in which a sentence may be appealed; and -- 22 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 21 Authorised by the Chief Parliamentary Counsel (b) a person appeals against the order or applies for leave to appeal against the order— this section applies to that order in the same way that it applies to a sentence. (6) Nothing in subsection (5) limits the application of any other provision of this Part to an appeal against an order referred to in that subsection. (7) This section is subject to section 29 of the Road Safety Act 1986.". 10 Bail pending appeal (1) Before section 430B(1) of the Children, Youth and Families Act 2005 insert— "(1AA) This section applies if— (a) an appellant is in custody because of a sentence in respect of a conviction; and (b) the person is appealing, or has applied for leave to appeal, against either the conviction or the sentence.". (2) In section 430B(1) of the Children, Youth and Families Act 2005, for "If an appellant is in custody because of the sentence appealed against and wishes to be released pending the appeal, the appellant—" substitute "The appellant—". 11 New sections 430BA to 430BE inserted After section 430B of the Children, Youth and Families Act 2005 insert— "430BA Listing pre-appeal mention hearings (1) The appellate court may list any appeal under section 424, or application for leave to appeal under section 424, for a pre-appeal mention hearing. -- 23 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 22 Authorised by the Chief Parliamentary Counsel (2) If a pre-appeal mention hearing is listed, the registrar of the County Court or the Prothonotary, as the case requires, must notify the appellant of the listing time and date. 430BB Pre-appeal mention hearings (1) An appellant or applicant must appear at any pre-appeal mention hearing listed by the appellate court in accordance with section 430BA. (2) At a pre-appeal mention hearing the appellate court may— (a) order any party to make, file or serve any written or oral material required by the court for the purposes of the appeal or application for leave; and (b) fix a date for the hearing of the appeal or application for leave; and (c) make an order under section 430BC; and (d) make any other order or give any direction that the court considers appropriate. 430BC Transcripts (1) The appellate court may order that copies of the following material are to be provided to the court and to the parties— (a) the transcript of the evidence given or submissions made in the summary hearing; (b) a transcript of the evidence given by a witness at the sentencing hearing; -- 24 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 23 Authorised by the Chief Parliamentary Counsel (c) a transcript of any other evidence, including an audio or audio visual recording of that evidence; (d) the transcript of the reasons of the Children's Court in the summary hearing. (2) The registrar of the County Court or the Prothonotary, as the case requires, may also make an order under subsection (1). (3) An order under subsection (1) may be made in respect of only a specified part of the summary hearing if the appellant or applicant and the respondent agree. 430BD Where recording of evidence is wholly or partly unavailable (1) The fact that part of the recording of the evidence given before the Children's Court is unavailable does not prevent the appellate court from receiving the evidence contained in another part of the recording in determining the appeal. Notes 1 The appellate court is to determine the appeal on the evidence given before the Children's Court in the summary hearing. See sections 426(1)(a)(i) and 426B(1). 2 Section 430BE also allows for the appellate court to receive further evidence in certain circumstances. (2) If the whole of the recording of the evidence that was given before the Children's Court is unavailable, the appellate court may, on an appeal against conviction under section 424, receive evidence that addresses any matter the court considers relevant and necessary to determining the appeal. -- 25 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 24 Authorised by the Chief Parliamentary Counsel Notes 1 Section 423A sets out when a recording is unavailable. 2 Evidence received under this subsection may be considered in an appeal against sentence only in accordance with section 426B(3)(c). 430BE Further evidence (1) On an appeal against conviction under section 424, the appellate court may receive evidence if the court is satisfied that— (a) it is in the interests of justice to do so; and (b) in the case of evidence protected under subsection (3) or (4), the evidence is substantially relevant to a fact in issue in the appeal. Note Evidence received under this section may be considered in an appeal against sentence only in accordance with section 426B(3)(c). (2) In determining whether it is in the interests of justice to receive evidence under this section, the appellate court must have regard to— (a) the probative value of the evidence; and (b) the right of the appellant to fully present their appeal; and (c) if the evidence was not given before the Children's Court in the summary hearing— (i) whether the evidence was available at the time of the summary hearing; and (ii) why the evidence was not given in the summary hearing; and -- 26 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 25 Authorised by the Chief Parliamentary Counsel (d) if the evidence was given in that hearing— (i) whether the recording of the giving of the evidence in that hearing, or any part of that recording, is unavailable; and Note If the whole of the recording of the evidence that was given before the Children's Court is unavailable, the appellate court has a separate power to receive evidence. See section 430BD(2). (ii) if the recording is available, whether there is any other reason why the evidence should be given again. (3) For the purposes of subsection (1)(b), evidence is protected under this subsection if— (a) the evidence is to be given by a complainant; and (b) the criminal proceeding relates (wholly or partly) to a charge for— (i) a sexual offence; or (ii) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or (iii) an offence against section 17(1) or 19 of the Summary Offences Act 1966. (4) For the purposes of subsection (1)(b), evidence is protected under this subsection if— -- 27 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 26 Authorised by the Chief Parliamentary Counsel (a) the evidence is to be given by a person who— (i) was a child at the time the criminal proceeding commenced; or (ii) had a cognitive impairment at the time the criminal proceeding commenced; and (b) the criminal proceeding relates (wholly or partly) to a charge for— (i) a sexual offence; or (ii) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or (iii) an offence against section 17(1) or 19 of the Summary Offences Act 1966; or (iv) an offence which involves an assault on, or injury or a threat of injury to, a person.". 12 New section 430CA inserted After section 430C of the Children, Youth and Families Act 2005 insert— "430CA Failure to file summary of appeal notice means appeal or application is abandoned and may be struck out (1) If an appellant or applicant fails to file a summary of appeal notice within the period specified in section 425A(1)— (a) the appeal or application is taken to be abandoned; and -- 28 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 27 Authorised by the Chief Parliamentary Counsel (b) the appellate court constituted by a judge, or a registrar of the County Court or the Prothonotary (as the case requires), may strike out the appeal or application. (2) If— (a) an appeal or application for leave is struck out under subsection (1); and (b) the appellant or applicant had been sentenced to a term of detention in a youth residential centre or a youth justice centre by the Children's Court— the registrar of the County Court or the Prothonotary, as the case requires, may issue, in accordance with the Magistrates' Court Act 1989, a warrant to detain the appellant or applicant in a youth residential centre or youth justice centre and may recall and cancel that warrant. (3) If an appeal or application for leave to appeal is struck out under subsection (1)— (a) the sentence of the Children's Court is reinstated and may be enforced as if an appeal or application had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and (b) the registrar of the County Court or the Prothonotary, as the case requires, must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal or application; and -- 29 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 28 Authorised by the Chief Parliamentary Counsel (c) the making of an order striking out an appeal or application discharges the undertaking of the appellant or applicant to proceed with the appeal or application. (4) The appellate court, at any time, may set aside an order striking out an appeal or application for leave to appeal because of the failure of the appellant or applicant to file a summary of appeal notice, if the appellant or applicant satisfies the court that the failure was not due to fault or neglect on the part of the appellant or applicant. (5) An application under subsection (4) to set aside an order may be made at any time by notice in writing to the respondent served a reasonable time before the making of the application. (6) Notice under subsection (5) must be served in the same way as a notice of appeal or application for leave to appeal. (7) If the appellate court grants an application under subsection (4), the court— (a) must order the reinstatement of the appeal or application for leave to appeal subject to the payment of any costs that the court considers appropriate; and (b) may require the appellant or applicant to give a further undertaking to proceed with the appeal or application. (8) An application under section 430B for bail pending the reinstated appeal or application may be made to the appellate court. -- 30 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 29 Authorised by the Chief Parliamentary Counsel (9) On the reinstatement of an appeal or application for leave to appeal, the appeal or application operates as a stay of the sentence (but not a conviction in respect of the sentence) when— (a) if required, the appellant or applicant signs the undertaking referred to in subsection (7)(b); and (b) if the appellant or applicant is in custody because of the sentence appealed against and bail is granted under section 430B, the appellant enters bail. (10) Subsection (9) is subject to section 29 of the Road Safety Act 1986.". 13 Failure to appear (1) In the heading to section 430D of the Children, Youth and Families Act 2005, for "Appellant's failure" substitute "Failure". (2) For section 430D(1) of the Children, Youth and Families Act 2005 substitute— "(1) If an appellant (other than the DPP) or an applicant for leave to appeal fails to appear at a pre-appeal mention hearing or at the time listed for the hearing of the appeal or application, the appellate court may— (a) strike out the appeal or application; or (b) adjourn the proceeding on any terms that it considers appropriate.". (3) In section 430D(1A) of the Children, Youth and Families Act 2005— (a) in paragraph (a), after "appeal" insert "or an application for leave to appeal"; -- 31 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 30 Authorised by the Chief Parliamentary Counsel (b) in paragraph (b), after "appellant" insert "or applicant"; (c) for "detain the person" substitute "detain the appellant or applicant". (4) In section 430D(2) of the Children, Youth and Families Act 2005— (a) after "If an appeal" insert "or an application for leave to appeal"; (b) in paragraph (a), after "an appeal" insert "or an application for leave to appeal"; (c) in paragraph (b), for "appeal;" substitute "appeal or application;"; (d) for paragraph (c) substitute— "(c) the making of an order striking out an appeal or an application for leave to appeal discharges the undertaking of the appellant or applicant to proceed with the appeal or application.". (5) In section 430D(3) of the Children, Youth and Families Act 2005— (a) after "an appeal" insert "or an application for leave to appeal"; (b) after "appellant" (where first and secondly occurring) insert "or applicant"; (c) for "appellant." substitute "appellant or applicant.". (6) In section 430D(6) of the Children, Youth and Families Act 2005— (a) in paragraph (a), after "appeal" insert "or application for leave to appeal"; -- 32 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 31 Authorised by the Chief Parliamentary Counsel (b) for paragraph (b) substitute— "(b) may require the appellant or applicant to give a further undertaking to proceed with the appeal or application.". (7) In section 430D(6A) of the Children, Youth and Families Act 2005, after "appeal" insert "or application for leave to appeal". (8) In section 430D(7) of the Children, Youth and Families Act 2005— (a) after "an appeal" insert "or an application for leave to appeal"; (b) after "the appeal" insert "or application"; (c) in paragraph (a), after "appellant" insert "or applicant"; (d) for paragraph (b) substitute— "(b) if the appellant or applicant is in custody because of the relevant sentence and bail is granted under section 430B, the appellant or applicant enters bail.". (9) After section 430D(7) of the Children, Youth and Families Act 2005 insert— "(7A) For the purposes of subsection (7), the relevant sentence is— (a) in the case of an appeal against a sentence, that sentence; or (b) in the case of an appeal against a conviction, the sentence imposed in respect of that conviction; or (c) in the case of an application for leave to appeal against a conviction, the sentence imposed in respect of that conviction.". -- 33 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 32 Authorised by the Chief Parliamentary Counsel 14 New sections 430EA and 430EB inserted After section 430E of the Children, Youth and Families Act 2005 insert— "430EA Power to strike out appeal with no reasonable prospect of success (1) The appellate court may strike out an appeal under section 424 if the court is satisfied that the appeal has no reasonable prospect of success. (2) If— (a) the appellate court strikes out an appeal under subsection (1); and (b) the appellant had been sentenced to a term of detention in a youth residential centre or a youth justice centre by the Children's Court— the registrar of the County Court or the Prothonotary, as the case requires, may issue, in accordance with the Magistrates' Court Act 1989, a warrant to detain the appellant or applicant in a youth residential centre or youth justice centre and may recall and cancel that warrant. (3) If an appeal is struck out under subsection (1)— (a) the stay of the sentence of the Children's Court is lifted; and (b) subject to subsection (4), the sentence may be enforced as if an appeal had not been commenced; and (c) the registrar of the County Court or the Prothonotary, as the case requires, must give to the respondent or to the -- 34 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 33 Authorised by the Chief Parliamentary Counsel respondent's legal practitioner a copy of the order striking out the appeal; and (d) the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal. (4) For the purposes of the enforcement of any penalty, time is deemed not to have run while the sentence of the Children's Court was stayed. 430EB Bail following appeal If on an appeal the appellate court remits the proceeding to the Children's Court in accordance with section 426(3), the appellate court may remand the appellant in custody or grant the appellant bail pending the hearing of the remitted proceeding in the Children's Court.". 15 New section 430GA inserted After section 430G of the Children, Youth and Families Act 2005 insert— "430GA Ancillary orders—how affected by appeal by offender (1) In this section— ancillary order means an order that— (a) is not a sentence; and (b) is made under an Act that provides that the order, or an application for the order, may only be made in respect of a person— (i) whom a court has found guilty, or not guilty by reason of mental impairment, of an offence; or -- 35 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 34 Authorised by the Chief Parliamentary Counsel (ii) on whom a court has imposed a sentence for an offence; applicable offence, in relation to an ancillary order made in respect of a person, means the offence for which— (a) the finding referred to in paragraph (b) of the definition of ancillary order was made; or (b) the sentence referred to in that paragraph was imposed. (2) If a person in respect of whom an ancillary order is made appeals, or applies for leave to appeal, under section 424 against the conviction or sentence for the applicable offence for that order— (a) the appeal or application for leave to appeal operates as a stay of the ancillary order— (i) on and from the time when the person files the application and signs the undertaking referred to in section 425(4); and (ii) until the determination or striking out of the appeal or application for leave to appeal; and (b) if the conviction is set aside on the appeal, the ancillary order does not take effect unless the appellate court otherwise orders. (3) If a provision of an Act under which an ancillary order is made is inconsistent with subsection (2), the provision of that other Act prevails to the extent of the inconsistency.". -- 36 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 35 Authorised by the Chief Parliamentary Counsel 16 Divisions 6 and 7 of Part 5.4 repealed Divisions 6 and 7 of Part 5.4 of the Children, Youth and Families Act 2005 are repealed. 17 New section 632 inserted At the end of Part 8.6 of the Children, Youth and Families Act 2005 insert— "632 Transitional provision—Justice Legislation Amendment (Criminal Appeals) Act 2019 (1) In this section— amending Act means the Justice Legislation Amendment (Criminal Appeals) Act 2019. (2) Subject to subsection (3), an amendment made to Part 5.4 by a provision of Part 2 of the amending Act applies in relation to a criminal proceeding in which the plea to the charge is entered in the Children's Court after the commencement of that amendment. (3) Despite the repeal of Divisions 6 and 7 of Part 5.4 by the amending Act, on and after that repeal, those provisions, as in force immediately before that repeal, continue to apply in relation to a sentence of imprisonment imposed by the appellate court under section 426, 429 or 429C— (a) before that repeal; or (b) following a plea of guilty entered before that repeal; or (c) following a conviction entered on a hearing that commenced before that repeal.". -- 37 of 89 -- Part 2—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 36 Authorised by the Chief Parliamentary Counsel Division 3—Statute law revision 18 Statute law revision In section 630 of the Children, Youth and Families Act 2005 (where secondly occurring), for "630" substitute "630A". -- 38 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 37 Authorised by the Chief Parliamentary Counsel Part 3—Amendment of Criminal Procedure Act 2009 Division 1—Appeal from summary hearing 19 New Division 1AA of Part 6.1 inserted After the heading to Part 6.1 of the Criminal Procedure Act 2009 insert— "Division 1AA—Preliminary 253C Definition In this Part— appellate court means the County Court or the Trial Division of the Supreme Court (as the case requires). 253D When a recording is unavailable In this Part, a reference to a recording, or a part of a recording, that is unavailable is a reference to a recording, or a part of a recording, that— (a) is indecipherable, destroyed or otherwise irretrievable; or (b) was never made.". 20 Division 1 of Part 6.1 substituted For Division 1 of Part 6.1 of the Criminal Procedure Act 2009 substitute— "Division 1—Appeal by offender 254 Right of appeal and leave to appeal (1) Subject to subsections (2) to (4), a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against either or both of— -- 39 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 38 Authorised by the Chief Parliamentary Counsel (a) the conviction; and (b) the sentence. Notes 1 See the definitions of conviction and sentence in section 3. 2 Other Acts may provide that other orders may be appealed against as if they were a sentence. See, for example, section 142 of the Confiscation Act 1997. (2) Leave to appeal is required from the County Court for an appeal against conviction if— (a) the person was convicted following a plea of guilty; or (b) subject to subsection (3), the person was convicted and sentenced but did not appear in the criminal proceeding in the Magistrates' Court. (3) A person referred to in subsection (2)(b) must not seek leave to appeal if— (a) the person has not made an application under section 88 in respect of the charge on which the person was convicted; or Note Section 88 provides that a person referred to in subsection (2)(b) may apply to the Magistrates' Court for an order that a charge be reheard. (b) the person has made an application referred to in paragraph (a) that has not yet been determined. (4) If the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal or application for leave to appeal is to be made to the Trial Division of the Supreme Court. -- 40 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 39 Authorised by the Chief Parliamentary Counsel 255 How appeal or application for leave to appeal is commenced (1) Subject to subsection (2), an appeal under section 254, or an application for leave to appeal under that section, is commenced by filing a notice of appeal or an application for leave to appeal, as the case requires, with a registrar of the Magistrates' Court at any venue of the Magistrates' Court within 28 days after the day on which the sentence of the Magistrates' Court is imposed. (2) If section 254(2)(b) applies, the application for leave to appeal is commenced by filing an application for leave to appeal with a registrar of the Magistrates' Court at any venue of the Magistrates' Court within 28 days after the Magistrates' Court did not order a rehearing under section 92. (3) A copy of the notice of appeal or the application for leave to appeal, as the case requires, must be served on the respondent in accordance with section 392 within 7 days after the day on which the notice or application is filed. (4) A notice of appeal must— (a) state whether the appeal is against conviction, sentence or both; and (b) state whether the appellant was convicted following a plea of guilty and, if so, whether the Magistrates' Court gave a sentence indication; and (c) be in the form, and include the information, prescribed by the rules of the appellate court. -- 41 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 40 Authorised by the Chief Parliamentary Counsel (5) An application for leave to appeal must— (a) state whether the applicant— (i) was convicted following a plea of guilty and, if so, whether the Magistrates' Court gave a sentence indication; or (ii) did not appear in the criminal proceeding in the Magistrates' Court; and (b) if paragraph (a)(ii) applies, state the date on which the Magistrates' Court did not order a rehearing under section 92; and (c) be in the form, and include the information, prescribed by the rules of the appellate court. (6) A notice of appeal or an application for leave to appeal must include a statement that— (a) is to the effect that the appellant or applicant is aware that on appeal the appellate court may impose a sentence more severe than that sought to be appealed against or for which leave to appeal is sought; and (b) is in the form prescribed by the rules of the appellate court; and (c) is signed by the appellant or applicant. (7) A notice of appeal or an application for leave to appeal must also include an undertaking signed by the appellant or applicant, in the manner prescribed by the rules of the appellate court— -- 42 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 41 Authorised by the Chief Parliamentary Counsel (a) to appear at the appellate court to proceed with the appeal or application at a place and on a day fixed or to be fixed by the registrar of the County Court or the Prothonotary (as the case requires) and to appear at the appellate court for the duration of the appeal or application; and (b) to give written notice without delay to the registrar of the County Court or the Prothonotary, as the case requires, of any change to the following information as appearing in the notice of appeal or application for leave to appeal— (i) the address of the appellant or applicant; (ii) other information prescribed in the rules of the appellate court. (8) Before accepting a notice of appeal or an application for leave to appeal, a registrar of the Magistrates' Court must, if the person seeking to file the notice of appeal or application for leave to appeal is not the proposed appellant or applicant, be satisfied that the proposed appellant or proposed applicant has signed the statement required to be included in the notice of appeal or the application for leave to appeal by subsection (6). (9) A notice of appeal or an application for leave to appeal filed under this section must be transmitted to the appellate court. -- 43 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 42 Authorised by the Chief Parliamentary Counsel 255A Summary of appeal notice (1) Within 28 days after filing a notice of appeal or an application for leave to appeal against the conviction imposed by the Magistrates' Court, the appellant or applicant must file a summary of appeal notice in the appellate court. (2) A summary of appeal notice must— (a) state the general grounds of appeal or application; and (b) be in the form prescribed by the rules of the appellate court. 255B Determination of application for leave to appeal (1) On an application for leave to appeal, the appellate court may only grant leave to appeal if satisfied that it is in the interests of justice to do so. (2) For the purposes of subsection (1), the appellate court may have regard to the following factors— (a) if the application relates to a conviction following a plea of guilty— (i) the circumstances in which the person entered the plea; and (ii) the time taken to apply for leave to appeal the conviction; and (iii) any other matter that the court considers relevant; (b) if the application relates to a conviction where the person did not appear in the criminal proceeding in the Magistrates' Court— -- 44 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 43 Authorised by the Chief Parliamentary Counsel (i) the time taken to apply for leave to appeal the conviction; and (ii) any other matter that the court considers relevant. 256 Determination of appeal—appeal against conviction (1) In determining an appeal against conviction under section 254, the appellate court must determine the appeal by way of rehearing— (a) on either— (i) the evidence given before the Magistrates' Court in the summary hearing; or (ii) if the whole of the recording of that evidence is unavailable, the evidence received under section 265D(2); and (b) on the evidence received in the appeal under section 265E (if any); and (c) having regard to the reasons of the Magistrates' Court in the summary hearing. Note Section 265C provides for the appellate court to make orders for the provision of transcripts and reasons. (2) If the appellate court allows the appeal, the court must— (a) set aside the conviction that was the subject of the appeal; and (b) either— (i) remit the proceeding in accordance with subsection (3); or -- 45 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 44 Authorised by the Chief Parliamentary Counsel (ii) deal with the appeal in accordance with subsection (4). (3) On allowing appeal against conviction for which leave was required under section 254(2), the appellate court may remit the proceeding to the Magistrates' Court with or without any direction in law. Note Section 256A provides further for these remittals. (4) On allowing any appeal against conviction under section 254, whether or not leave was required under section 254(2), the appellate court may— (a) dismiss the charge for the offence that was the subject of the appeal; and (b) if— (i) at any time in the summary hearing there was before the Magistrates' Court a charge against the appellant other than the charge for the offence that is the subject of the appeal; and (ii) the appellant could have been found guilty of that other charge; and (iii) the appellate court is satisfied, beyond reasonable doubt, that the appellant is guilty of the offence that is the subject of that other charge— reinstate that other charge (if necessary) and enter a judgment of conviction for the offence to which it relates and impose a sentence for that offence that is no more severe than the sentence that -- 46 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 45 Authorised by the Chief Parliamentary Counsel was imposed for the offence that was the subject of the appeal; and (c) vary a sentence that— (i) was imposed for an offence that was not the subject of the appeal at or after the time when the appellant was sentenced for the offence that was the subject of the appeal; and (ii) took into account the sentence for the offence that was the subject of the appeal; and (d) exercise any power which the Magistrates' Court could have exercised. (5) The power under subsection (4)(c) to vary the sentence referred to in that provision may still be exercised even if the sentence imposed by the Magistrates' Court is an aggregate sentence of imprisonment. (6) If, at the conclusion of an appeal being dealt with under subsection (4), the appellant remains convicted of more than one offence, the appellate court may impose any sentences that the Magistrates' Court could have imposed for those offences. Note This section previously provided for appeals in which charges were reheard de novo. The Justice Legislation Amendment (Criminal Appeals) Act 2019 abolished those de novo appeals and replaced them with these appeals, which instead are by way of rehearing on the evidence given before the Magistrates' Court. (Additionally, sections 265D and 265E provide for the receipt of further evidence in certain circumstances.) -- 47 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 46 Authorised by the Chief Parliamentary Counsel 256A Remittal following determination of appeal against conviction (1) This section applies if, on an appeal against conviction under section 254, the appellate court remits the proceeding to the Magistrates' Court under section 256(3). (2) On the proceeding being remitted— (a) the following charges are reinstated— (i) each charge for which a conviction was set aside on the appeal; and (ii) each charge described in subsection (3); and (b) the following sentences are set aside— (i) each sentence imposed by the Magistrates' Court in respect of a conviction that was set aside on appeal; and (ii) each sentence imposed by the Magistrates' Court on any other charge in the summary hearing from which the appeal was brought. (3) A charge is reinstated under subsection (2)(a)(ii) if— (a) it was contained in a charge-sheet that also contained a charge for which a conviction was set aside on the appeal; and (b) in the summary hearing, the charge was not struck out for non-compliance with section 7; and -- 48 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 47 Authorised by the Chief Parliamentary Counsel (c) at the conclusion of the appeal, the appellant does not remain convicted of the charge. (4) The Magistrates' Court must— (a) summarily hear and determine each charge reinstated under subsection (2)(a); and (b) re-sentence the offender on each charge for which the sentence is set aside under subsection (2)(b)(ii). 256B Determination of appeal—appeal against sentence (1) In determining an appeal against sentence under section 254, the appellate court must determine the appeal on the evidence and other material that was before the Magistrates' Court for the sentencing hearing. Note Subsection (3) also permits the appellate court to consider other matters. (2) Without limiting subsection (1), the appellate court may consider the following— (a) if the appellant pleaded guilty, the agreed statement of facts on which the Magistrates' Court relied to impose the sentence that is the subject of the appeal; (b) the criminal record of the appellant, if any; (c) any documentary evidence that was before the Magistrates' Court for the sentencing hearing; -- 49 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 48 Authorised by the Chief Parliamentary Counsel (d) if oral evidence was taken from a witness or the appellant at the sentencing hearing, a transcript of that evidence. (3) The appellate court may also consider— (a) other evidence, material or information that— (i) relates to matters that occurred after the Magistrates' Court sentenced the appellant; and (ii) concerns the circumstances of the appellant; and (b) any submissions made during the hearing of the appeal; and (c) if an appeal was also brought against the conviction to which the sentence relates, the evidence received in that appeal under section 265D or 265E (if any); and (d) if there is a factual issue in dispute that the court considers relevant and necessary to determining the appeal, any other evidence given before the Magistrates' Court in the summary hearing. (4) For the purposes of subsections (1), (2) and (3), the appellate court may inform itself of what evidence or other material was before the Magistrates' Court in any way it sees fit. (5) In determining an appeal against sentence under section 254— (a) the appellate court must allow the appeal if it finds that there are substantial reasons to impose a -- 50 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 49 Authorised by the Chief Parliamentary Counsel different sentence from that imposed by the Magistrates' Court; and (b) must dismiss the appeal in any other case. (6) For the purposes of subsection (5), in determining whether there are substantial reasons to impose a different sentence the appellate court must have regard to— (a) the reasons of the Magistrates' Court in the summary hearing; and (b) the need for a just and fair outcome. (7) The determination of substantial reasons for the purposes of this section— (a) does not require a specific error of law to be identified; and (b) is not satisfied merely by the identification of a deficiency in the sentencing remarks made by the magistrate constituting the Magistrates' Court in the summary hearing; and (c) requires more than it being merely arguable that a different sentence should be imposed; and (d) does not require the appellate court to be satisfied that the sentence was unreasonable or plainly unjust. (8) If the appellate court allows an appeal against sentence under section 254, the court— (a) must set aside the sentence; and (b) may impose any sentence which the court considers appropriate and which the Magistrates' Court could have imposed; and -- 51 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 50 Authorised by the Chief Parliamentary Counsel (c) may exercise any power which the Magistrates' Court could have exercised. 256C Sentence imposed on appeal (1) The appellate court may backdate a sentence imposed under section 256 or 256B to a date not earlier than the date of the sentence of the Magistrates' Court that was set aside on the appeal. (2) A sentence imposed under section 256 or 256B is for all purposes to be regarded as a sentence of the appellate court. Note See the definition of sentence in section 3. This includes the recording of a conviction and an order as to costs. 256D Warning that more severe sentence may be imposed If, on an appeal under section 254, the appellate court is considering imposing a more severe sentence than that imposed by the Magistrates' Court, the appellate court must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Magistrates' Court.". 21 Determination of DPP's appeal (1) For section 259(1) of the Criminal Procedure Act 2009 substitute— "(1) In determining an appeal under section 257, the appellate court must determine the appeal on the evidence and other material that was before the Magistrates' Court for the sentencing hearing. -- 52 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 51 Authorised by the Chief Parliamentary Counsel Note Subsection (1B) also permits the appellate court to consider other matters. (1A) Without limiting subsection (1), the appellate court may consider the following— (a) if the respondent pleaded guilty, the agreed statement of facts on which the Magistrates' Court relied to impose the sentence that is the subject of the appeal; (b) the criminal record of the respondent, if any; (c) any documentary evidence that was before the Magistrates' Court for the sentencing hearing; (d) if oral evidence was taken from a witness or the respondent at the sentencing hearing, a transcript of that evidence. (1B) The appellate court may also consider— (a) other evidence, material or information that— (i) relates to matters that occurred after the Magistrates' Court sentenced the respondent; and (ii) concerns the circumstances of the respondent; and (b) any submissions made during the hearing of the appeal; and (c) if there is a factual issue in dispute that the appellate court considers relevant and necessary to determining the appeal, any other evidence given before -- 53 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 52 Authorised by the Chief Parliamentary Counsel the Magistrates' Court in the summary hearing. (1C) For the purposes of subsections (1), (1A) and (1B), the appellate court may inform itself of what evidence or other material was before the Magistrates' Court in any way it sees fit. (1D) In determining an appeal under section 257— (a) the appellate court must allow the appeal if it finds that there are substantial reasons to impose a different sentence from that imposed by the Magistrates' Court; and (b) must dismiss the appeal in any other case. (1E) For the purposes of subsection (1D), in determining whether there are substantial reasons to impose a different sentence the appellate court must have regard to— (a) the reasons of the Magistrates' Court in the summary hearing; and (b) the need for a just and fair outcome. (1F) The determination of substantial reasons for the purposes of this section— (a) does not require a specific error of law to be identified; and (b) is not satisfied merely by the identification of a deficiency in the sentencing remarks made by the magistrate constituting the Magistrates' Court in the summary hearing; and -- 54 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 53 Authorised by the Chief Parliamentary Counsel (c) requires more than it being merely arguable that a different sentence should be imposed; and (d) does not require the appellate court to be satisfied that the sentence was unreasonable or plainly unjust.". (2) For section 259(2) of the Criminal Procedure Act 2009 substitute— "(2) If the appellate court allows an appeal referred to in subsection (1), the court— (a) must set aside the sentence; and (b) may impose any sentence which the court considers appropriate and which the Magistrates' Court could have imposed; and (c) may exercise any power which the Magistrates' Court could have exercised.". 22 Section 264 substituted For section 264 of the Criminal Procedure Act 2009 substitute— "264 Stay of sentence (1) This section applies— (a) if a person— (i) applies under section 254 for leave to appeal against conviction; or (ii) appeals under section 254 against a conviction or a sentence or both; and -- 55 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 54 Authorised by the Chief Parliamentary Counsel (b) whether or not the person is in custody because of the relevant sentence, being— (i) if the person is appealing against a conviction, or applying for leave to appeal against a conviction, the sentence in respect of that conviction; or (ii) if the person is appealing against a sentence, that sentence. (2) The appeal or application for leave to appeal operates as a stay of the relevant sentence (but not any conviction). (3) The stay of the relevant sentence operates from— (a) if the person is not in custody because of that sentence, the time when the person files the notice of appeal or application for leave to appeal and signs the undertaking referred to in section 255(7); or (b) if the person is in custody because of that sentence, the time when— (i) the person files the notice of appeal or application for leave to appeal and signs the undertaking referred to in section 255(7); and (ii) the person enters bail, if bail is granted under section 265. (4) The stay of the relevant sentence operates until the determination of the appeal or the refusal of the application for leave to appeal. -- 56 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 55 Authorised by the Chief Parliamentary Counsel (5) To avoid doubt, if— (a) an Act provides that— (i) an order may be appealed against as if it were a sentence; or (ii) an order may be appealed in the same manner in which a sentence may be appealed; and (b) a person appeals against the order or applies for leave to appeal against the order— this section applies to that order in the same way that it applies to a sentence. (6) Nothing in subsection (5) limits the application of any other provision of this Part to an appeal against an order referred to in that subsection. (7) This section is subject to section 29 of the Road Safety Act 1986.". 23 Bail pending appeal (1) Before section 265(1) of the Criminal Procedure Act 2009 insert— "(1AA) This section applies if— (a) an appellant is in custody because of a sentence in respect of a conviction; and (b) the person is appealing, or has applied for leave to appeal, against either the conviction or the sentence.". (2) In section 265(1) of the Criminal Procedure Act 2009, for "If an appellant is in custody because of the sentence appealed against and wishes to be released pending the appeal, the appellant—" substitute "The appellant—". -- 57 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 56 Authorised by the Chief Parliamentary Counsel 24 New sections 265A to 265E inserted After section 265 of the Criminal Procedure Act 2009 insert— "265A Listing pre-appeal mention hearings (1) The appellate court may list any appeal under section 254, or application for leave to appeal under section 254, for a pre-appeal mention hearing. (2) If a pre-appeal mention hearing is listed, the registrar of the County Court or the Prothonotary, as the case requires, must notify the appellant of the listing time and date. 265B Pre-appeal mention hearings (1) An appellant or applicant must appear at any pre-appeal mention hearing listed by the appellate court in accordance with section 265A. (2) At a pre-appeal mention hearing the appellate court may— (a) order any party to make, file or serve any written or oral material required by the court for the purposes of the appeal or application for leave; and (b) fix a date for the hearing of the appeal or application for leave; and (c) make an order under section 265C; and (d) make any other order or give any direction that the court considers appropriate. -- 58 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 57 Authorised by the Chief Parliamentary Counsel 265C Transcripts (1) The appellate court may order that copies of the following material are to be provided to the court and to the parties— (a) the transcript of the evidence given or submissions made in the summary hearing; (b) a transcript of the evidence given by a witness at the sentencing hearing; (c) a transcript of any other evidence, including an audio or audiovisual recording of that evidence; (d) the transcript of the reasons of the Magistrates' Court in the summary hearing. (2) The registrar of the County Court or the Prothonotary, as the case requires, may also make an order under subsection (1). (3) An order under subsection (1) may be made in respect of only a specified part of the summary hearing if the appellant or applicant and the respondent agree. 265D Where recording of evidence is wholly or partly unavailable (1) The fact that part of the recording of the evidence given before the Magistrates' Court is unavailable does not prevent the appellate court from receiving the evidence contained in another part of the recording in determining the appeal. Notes 1 The appellate court is to determine the appeal on the evidence given before the Magistrates' Court in the summary hearing. See sections 256(1)(a)(i) and 256B(1). -- 59 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 58 Authorised by the Chief Parliamentary Counsel 2 Section 265E also allows for the appellate court to receive further evidence in certain circumstances. (2) If the whole of the recording of the evidence that was given before the Magistrates' Court is unavailable, the appellate court may, on an appeal against conviction under section 254, receive evidence that addresses any matter the court considers relevant and necessary to determining the appeal. Notes 1 Section 253D sets out when a recording is unavailable. 2 Evidence received under this subsection may be considered in an appeal against sentence only in accordance with section 256B(3)(c). 265E Further evidence (1) On an appeal against conviction under section 254, the appellate court may receive evidence if the court is satisfied that— (a) it is in the interests of justice to do so; and (b) in the case of evidence protected under subsection (3) or (4), the evidence is substantially relevant to a fact in issue in the appeal. Note Evidence received under this section may be considered in an appeal against sentence only in accordance with section 256B(3)(c). (2) In determining whether it is in the interests of justice to receive evidence under this section, the appellate court must have regard to— -- 60 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 59 Authorised by the Chief Parliamentary Counsel (a) the probative value of the evidence; and (b) the right of the appellant to fully present their appeal; and (c) if the evidence was not given before the Magistrates' Court in the summary hearing— (i) whether the evidence was available at the time of the summary hearing; and (ii) why the evidence was not given in the summary hearing; and (d) if the evidence was given in that hearing— (i) whether the recording of the giving of the evidence in that hearing, or any part of that recording, is unavailable; and Note If the whole of the recording of the evidence that was given before the Magistrates' Court is unavailable, the appellate court has a separate power to receive evidence. See section 265D(2). (ii) if the recording is available, whether there is any other reason why the evidence should be given again. (3) For the purposes of subsection (1)(b), evidence is protected under this subsection if— (a) the evidence is to be given by a complainant; and -- 61 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 60 Authorised by the Chief Parliamentary Counsel (b) the criminal proceeding relates (wholly or partly) to a charge for— (i) a sexual offence; or (ii) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or (iii) an offence against section 17(1) or 19 of the Summary Offences Act 1966. (4) For the purposes of subsection (1)(b), evidence is protected under this subsection if— (a) the evidence is to be given by a person who— (i) was a child at the time the criminal proceeding commenced; or (ii) had a cognitive impairment at the time the criminal proceeding commenced; and (b) the criminal proceeding relates (wholly or partly) to a charge for— (i) a sexual offence; or (ii) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or -- 62 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 61 Authorised by the Chief Parliamentary Counsel (iii) an offence against section 17(1) or 19 of the Summary Offences Act 1966; or (iv) an offence which involves an assault on, or injury or a threat of injury to, a person.". 25 New section 266A inserted After section 266 of the Criminal Procedure Act 2009 insert— "266A Failure to file summary of appeal notice means appeal or application is abandoned and may be struck out (1) If an appellant or applicant fails to file a summary of appeal notice within the period specified in section 255A(1)— (a) the appeal or application is taken to be abandoned; and (b) the appellate court, or the registrar of the County Court or the Prothonotary (as the case requires), may strike out the appeal or application. (2) If— (a) an appeal or application for leave is struck out under subsection (1); and (b) the appellant or applicant had been sentenced to a term of imprisonment or detention by the Magistrates' Court— the registrar of the County Court or the Prothonotary, as the case requires, may issue, in accordance with the Magistrates' Court Act 1989, a warrant to imprison the appellant or applicant and may recall and cancel that warrant. -- 63 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 62 Authorised by the Chief Parliamentary Counsel (3) If an appeal or application for leave to appeal is struck out under subsection (1)— (a) the sentence of the Magistrates' Court is reinstated and may be enforced as if an appeal or application had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and (b) the registrar of the County Court or the Prothonotary, as the case requires, must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal or application; and (c) the making of an order striking out an appeal or application discharges the undertaking of the appellant or applicant to proceed with the appeal or application. (4) The appellate court, at any time, may set aside an order striking out an appeal or application for leave to appeal because of the failure of the appellant or applicant to file a summary of appeal notice, if the appellant or applicant satisfies the court that the failure was not due to fault or neglect on the part of the appellant or applicant. (5) An application under subsection (4) to set aside an order may be made at any time by notice in writing to the respondent served a reasonable time before the making of the application. (6) Notice under subsection (5) must be served in the same way as a notice of appeal or application for leave to appeal. -- 64 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 63 Authorised by the Chief Parliamentary Counsel (7) If the appellate court grants an application under subsection (4), the court— (a) must order the reinstatement of the appeal or application for leave to appeal subject to the payment of any costs that the court considers appropriate; and (b) may require the appellant or applicant to give a further undertaking to proceed with the appeal or application. (8) An application under section 265 for bail pending the reinstated appeal or application may be made to the appellate court. (9) On the reinstatement of an appeal or application, the appeal or application operates as a stay of the sentence (but not a conviction in respect of the sentence) when— (a) if required, the appellant or applicant signs the undertaking referred to in subsection (7)(b); and (b) if the appellant or applicant is in custody because of the sentence appealed against and bail is granted under section 265, the appellant enters bail. (10) Subsection (9) is subject to section 29 of the Road Safety Act 1986.". 26 Section 267 substituted For section 267 of the Criminal Procedure Act 2009 substitute— "267 Failure to appear (1) If an appellant (other than the DPP) or an applicant for leave to appeal fails to appear at a pre-appeal mention hearing or at the -- 65 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 64 Authorised by the Chief Parliamentary Counsel time listed for the hearing of the appeal or application, the appellate court may— (a) strike out the appeal or application; or (b) adjourn the proceeding on any terms that it considers appropriate. (2) If— (a) the appellate court strikes out an appeal or an application for leave to appeal under subsection (1)(a); and (b) the appellant or applicant had been sentenced to a term of imprisonment or detention by the Magistrates' Court— the registrar of the County Court or the Prothonotary (as the case requires) may issue, in accordance with the Magistrates' Court Act 1989, a warrant to imprison the appellant or applicant and may recall and cancel that warrant. (3) If an appeal or an application for leave to appeal is struck out under subsection (1)(a)— (a) the sentence of the Magistrates' Court is reinstated and may be enforced as if an appeal or an application for leave to appeal had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and (b) the registrar of the County Court or the Prothonotary (as the case requires) must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal or application; and -- 66 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 65 Authorised by the Chief Parliamentary Counsel (c) the making of an order striking out an appeal or an application for leave to appeal discharges the undertaking of the appellant or applicant to proceed with the appeal or application. (4) The court, at any time, may set aside an order striking out an appeal or an application for leave to appeal because of the failure of the appellant or applicant to appear, if the appellant or applicant satisfies the court that the failure to appear was not due to fault or neglect on the part of the appellant or applicant. (5) An application under subsection (4) to set aside an order may be made at any time on notice in writing to the respondent served a reasonable time before the making of the application. (6) Notice under subsection (5) must be served in the same way as a notice of appeal. (7) If the court grants an application under subsection (4), the court— (a) must order the reinstatement of the appeal or application for leave to appeal subject to the payment of any costs that the court considers appropriate; and (b) may require the appellant or applicant to give a further undertaking to proceed with the appeal or application. (8) An application under section 265 for bail pending the reinstated appeal or application for leave to appeal may be made to the appellate court. (9) On the reinstatement of an appeal or an application for leave to appeal under subsection (7), the appeal or application -- 67 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 66 Authorised by the Chief Parliamentary Counsel operates as a stay of the sentence (but not a conviction in respect of the sentence) when— (a) if required, the appellant or applicant signs the undertaking referred to in subsection (7)(b); and (b) if the appellant or applicant is in custody because of the relevant sentence and bail is granted under section 265, the appellant or applicant enters bail. (10) For the purposes of subsection (9), the relevant sentence is— (a) in the case of an appeal against a sentence, that sentence; or (b) in the case of an appeal against a conviction, the sentence imposed in respect of that conviction; or (c) in the case of an application for leave to appeal against a conviction, the sentence imposed in respect of that conviction. (11) Subsection (9) is subject to section 29 of the Road Safety Act 1986.". 27 New sections 268A and 268B inserted After section 268 of the Criminal Procedure Act 2009 insert— "268A Power to strike out appeal with no reasonable prospect of success (1) The appellate court may strike out an appeal under section 254 if the court is satisfied that the appeal has no reasonable prospect of success. -- 68 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 67 Authorised by the Chief Parliamentary Counsel (2) If— (a) the appellate court strikes out an appeal under subsection (1); and (b) the appellant had been sentenced to a term of imprisonment or detention by the Magistrates' Court— the registrar of the County Court or the Prothonotary, as the case requires, may issue, in accordance with the Magistrates' Court Act 1989, a warrant to imprison the appellant and may recall and cancel that warrant. (3) If an appeal is struck out under subsection (1)— (a) the stay of the sentence of the Magistrates' Court is lifted; and (b) subject to subsection (4), the sentence may be enforced as if an appeal had not been commenced; and (c) the registrar of the County Court or the Prothonotary, as the case requires, must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and (d) the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal. (4) For the purposes of the enforcement of any penalty, time is deemed not to have run while the sentence of the Magistrates' Court was stayed. -- 69 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 68 Authorised by the Chief Parliamentary Counsel 268B Bail following appeal If on an appeal the appellate court remits the proceeding to the Magistrates' Court in accordance with section 256(3), the appellate court may remand the appellant in custody or grant the appellant bail pending the hearing of the remitted proceeding in the Magistrates' Court.". 28 Appeal to County Court authorised by other Acts Note 1 at the foot of section 271 of the Criminal Procedure Act 2009 is repealed. 29 New section 271A inserted After section 271 of the Criminal Procedure Act 2009 insert— "271A Ancillary orders—how affected by appeal by offender (1) In this section— ancillary order means an order that— (a) is not a sentence; and (b) is made under an Act that provides that the order, or an application for the order, may only be made in respect of a person— (i) whom a court has found guilty, or not guilty by reason of mental impairment, of an offence; or (ii) on whom a court has imposed a sentence for an offence; -- 70 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 69 Authorised by the Chief Parliamentary Counsel applicable offence, for an ancillary order made in respect of a person, means the offence for which— (a) the finding referred to in paragraph (b) of the definition of ancillary order was made; or (b) the sentence referred to in that paragraph was imposed. (2) If a person in respect of whom an ancillary order is made appeals, or applies for leave to appeal, under section 254 against the conviction or sentence for the applicable offence for that order— (a) the appeal or application for leave to appeal operates as a stay of the ancillary order— (i) on and from the time when the person files the application and signs the undertaking referred to in section 255(7); and (ii) until the determination or striking out of the appeal or application for leave to appeal; and (b) if the conviction is set aside on the appeal, the ancillary order does not take effect unless the appellate court otherwise orders. (3) If a provision of an Act under which an ancillary order is made is inconsistent with subsection (2), the provision of that other Act prevails to the extent of the inconsistency.". -- 71 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 70 Authorised by the Chief Parliamentary Counsel 30 Sections 283 to 286 repealed Sections 283, 284, 284A, 285 and 286 of the Criminal Procedure Act 2009 are repealed. 31 Consequential amendments—cross-references (1) In section 263(1) and (2)(a) of the Criminal Procedure Act 2009, after "section 255(1)" insert "or (2)". (2) In section 290A of the Criminal Procedure Act 2009, for "section 256" substitute "section 256B". (3) In section 315(3) of the Criminal Procedure Act 2009 omit "or 284A(3)". (4) In section 322(2) of the Criminal Procedure Act 2009 omit "or 284A(3)". (5) In section 334(4)(c) of the Criminal Procedure Act 2009— (a) for "section 255" substitute "section 255, or an application for leave to appeal referred to in that section,"; (b) for "section 255(5);" substitute "section 255(7);". (6) In section 406(4)(a) of the Criminal Procedure Act 2009, for "section 255(5);" substitute "section 255(7);". 32 Consequential amendments—references to appellate courts (1) In section 257(2) of the Criminal Procedure Act 2009, for "County Court or the Trial Division of the Supreme Court, as the case requires" substitute "appellate court". -- 72 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 71 Authorised by the Chief Parliamentary Counsel (2) In section 258(3)(b) and (5) of the Criminal Procedure Act 2009, for "County Court or the Supreme Court, as the case requires" substitute "appellate court". (3) In section 259(5) of the Criminal Procedure Act 2009, for "County Court or the Supreme Court, as the case requires" substitute "appellate court". (4) In section 260(3) of the Criminal Procedure Act 2009, for "County Court or the Trial Division of the Supreme Court, as the case requires" substitute "appellate court". (5) In section 261(3) and (5) of the Criminal Procedure Act 2009, for "County Court or the Supreme Court, as the case requires." substitute "appellate court". (6) In section 262(2) of the Criminal Procedure Act 2009, for "County Court or the Supreme Court, as the case requires," substitute "appellate court". (7) In section 263(2) and (4)(a) of the Criminal Procedure Act 2009, for "County Court or the Supreme Court, as the case requires,", substitute "appellate court". (8) In section 263(4) and (5)(b) of the Criminal Procedure Act 2009, for "Prothonotary of the Supreme Court" substitute "Prothonotary". (9) In section 266(1) of the Criminal Procedure Act 2009— (a) for "County Court or the Supreme Court, as the case requires," substitute "appellate court"; -- 73 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 72 Authorised by the Chief Parliamentary Counsel (b) for "applicable court" (where twice occurring) substitute "appellate court". (10) In section 266(3)(a), (3A) and (5)(b) of the Criminal Procedure Act 2009, for "Prothonotary of the Supreme Court" substitute "Prothonotary". (11) In section 268(1) and (2) of the Criminal Procedure Act 2009, and in the Note at the foot of section 268(1)(b) of that Act, for "County Court or the Supreme Court, as the case requires" substitute "appellate court". (12) In section 270 of the Criminal Procedure Act 2009, for "County Court or the Supreme Court, as the case requires" substitute "appellate court". Division 2—Powers of Court of Appeal 33 Definitions In section 3 of the Criminal Procedure Act 2009, insert the following definition— "reference determination means a determination made by the Trial Division of the Supreme Court or the County Court (as the case requires) on a referral under section 319A(2);". 34 New section 319A inserted After section 319 of the Criminal Procedure Act 2009 insert— "319A Court of Appeal may refer issue or matter for reference determination (1) This section applies to— (a) an appeal under this Part or Part 6.4; and -- 74 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 73 Authorised by the Chief Parliamentary Counsel (b) an application for leave to appeal under this Part or Part 6.4. (2) The Court of Appeal may refer, for the making of a reference determination, any specified issue or matter arising on an appeal or an application for leave to appeal to which this section applies— (a) to the Trial Division of the Supreme Court constituted by a Judge of the Court within the meaning of the Supreme Court Act 1986; or (b) to the County Court constituted by a judge within the meaning of the County Court Act 1958. (3) The Court of Appeal may make any directions it considers appropriate in a referral under subsection (2), including directions about— (a) the form any reference determination should take; or (b) procedural matters. (4) The Trial Division of the Supreme Court or the County Court (as the case requires) to which a referral for a reference determination is made— (a) must hear and determine the issue or matter in accordance with any directions in the referral; and (b) may otherwise conduct the hearing and determine the procedure for the hearing as it considers appropriate; and -- 75 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 74 Authorised by the Chief Parliamentary Counsel (c) on the determination of the issue or matter, must provide its reference determinations to the Court of Appeal. (5) If the Court of Appeal gives leave, the Court of Appeal may hear and determine an appeal against a reference determination as part of the appeal or application for leave to appeal to which the reference determination relates. (6) Unless the Court of Appeal otherwise determines in accordance with subsection (5), a reference determination is taken to be a determination of the Court of Appeal in the appeal or application for leave to appeal to which the reference determination relates. (7) A referral under subsection (2) must not be made to— (a) the Trial Division of the Supreme Court constituted by a Judge of the Court who was also the trial judge in the proceeding which is the subject of the appeal or application for leave to appeal; or (b) the County Court constituted by a judge who was also the trial judge in the proceeding which is the subject of the appeal or application for leave to appeal. (8) Nothing in this section limits any powers of the Court of Appeal.". -- 76 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 75 Authorised by the Chief Parliamentary Counsel Division 3—Second or subsequent appeal against conviction for indictable offence 35 New Part 6.4 inserted in Chapter 6 After Part 6.3 of the Criminal Procedure Act 2009 insert— "Part 6.4—Second or subsequent appeal to Court of Appeal Division 1—Appeal against conviction 326A Right of second or subsequent appeal against conviction (1) A person convicted of an indictable offence by an originating court who— (a) has exhausted the person's right to appeal against conviction under Division 1 of Part 6.3; or (b) has previously appealed under this Part but leave to appeal was not granted or the appeal was dismissed, in whole or in part— may appeal to the Court of Appeal against the conviction if the Court of Appeal gives the person leave to appeal. Note See the definition of originating court in section 3. (2) An appeal under subsection (1) may also include an appeal against a conviction for a related summary offence. -- 77 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 76 Authorised by the Chief Parliamentary Counsel 326B How appeal is commenced (1) An application for leave to appeal under section 326A is commenced by filing a notice of application for leave to appeal in accordance with the rules of court. (2) The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed. 326C Determination of application for leave to appeal under section 326A (1) The Court of Appeal may grant leave to appeal under section 326A if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. (2) The Court of Appeal may grant leave to appeal under section 326A against a conviction for a related summary offence only if it grants leave to appeal under subsection (1) in relation to the indictable offence. (3) In this section, evidence relating to an offence of which a person is convicted is— (a) fresh if— (i) it was not adduced at the trial of the offence; and (ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and -- 78 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 77 Authorised by the Chief Parliamentary Counsel (b) compelling if— (i) it is reliable; and (ii) it is substantial; and (iii) either— (A) it is highly probative in the context of the issues in dispute at the trial of the offence; or (B) it would have eliminated or substantially weakened the prosecution case if it had been presented at trial. (4) Evidence that would be admissible on a second or subsequent appeal is not precluded from being fresh or compelling only because it would not have been admissible in the earlier trial of the offence that resulted in the conviction. 326D Determination of second or subsequent appeal against conviction (1) On an appeal under section 326A, the Court of Appeal must allow the appeal against conviction if it is satisfied that there has been a substantial miscarriage of justice. (2) In any other case, the Court of Appeal must dismiss an appeal under section 326A. 326E Orders etc. on successful appeal (1) If the Court of Appeal allows an appeal under section 326A, it must set aside the conviction of the offence (offence A) and must— -- 79 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 78 Authorised by the Chief Parliamentary Counsel (a) order a new trial of offence A; or (b) enter a judgment of acquittal of offence A; or (c) if— (i) the appellant could have been found guilty of some other offence (offence B) instead of offence A; and (ii) the court is satisfied that the jury or, in the case of a plea of guilty to offence A, the trial judge must have been satisfied of facts that prove the appellant was guilty of offence B— enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or (d) if the appellant could have been found guilty of some other offence (offence B) instead of offence A and the court is not satisfied as required by paragraph (c)(ii), order a new trial for offence B; or (e) if the court is satisfied that the appellant should have been found not guilty of offence A because of mental impairment, enter a finding of not guilty because of mental impairment and make an order or declaration under section 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or -- 80 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 79 Authorised by the Chief Parliamentary Counsel (f) if the appellant could have been found guilty of some other offence (offence B) instead of offence A and the court is satisfied— (i) that the jury must have been satisfied of facts that prove the appellant did the acts or made the omissions that constitute offence B; and (ii) that the appellant should have been found not guilty of offence B because of mental impairment— enter a finding of not guilty of offence B because of mental impairment and make an order or declaration under section 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. (2) If the Court of Appeal orders a new trial, the court must order that the appellant attend on a specified date before the court in which the new trial will be conducted. Note Section 326K enables the Court of Appeal to remand the appellant in custody or grant bail pending a new trial. (3) If the Court of Appeal sets aside the conviction of offence A, it may vary a sentence that— (a) was imposed for an offence other than offence A at or after the time when the appellant was sentenced for offence A; and (b) took into account the sentence for offence A. -- 81 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 80 Authorised by the Chief Parliamentary Counsel (4) A power of the Court of Appeal under this section to impose a sentence in substitution for the sentence imposed by the originating court may still be exercised even if the sentence imposed by the originating court is an aggregate sentence of imprisonment. (5) If at the conclusion of an appeal the appellant remains convicted of more than one offence, the Court of Appeal may either— (a) impose a separate sentence in respect of each offence; or (b) impose an aggregate sentence of imprisonment in respect of all offences or any 2 or more offences. Division 2—Powers and procedure 326F Stay of sentence and bail pending appeal (1) If a notice of application for leave to appeal is filed under section 326B, the Court of Appeal may stay a sentence if satisfied that it is in the interests of justice to do so. (2) A prisoner within the meaning of the Corrections Act 1986 who applies for leave to appeal to the Court of Appeal under this Part may apply to the Court of Appeal to be granted bail. (3) On an application under subsection (2), the Court of Appeal may grant the prisoner bail pending the appeal. 326G Abandonment of appeal An appeal under this Part may be abandoned in accordance with the rules of court. -- 82 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 81 Authorised by the Chief Parliamentary Counsel 326H Powers which may be exercised by Court of Appeal constituted by a single Judge of Appeal (1) The Court of Appeal constituted by a single Judge of Appeal may exercise the following powers in this Part— (a) to give leave to appeal; (b) to grant the appellant bail; (c) to order stays of sentence. (2) If the Court of Appeal constituted by a single Judge of Appeal refuses an application to exercise a power referred to in subsection (1) in relation to any ground of appeal, the applicant is entitled to have the application determined by the Court of Appeal constituted by 2 or more Judges of Appeal. 326I Application of sections 316 to 320 and 326 Sections 316 to 320 and 326 apply with any necessary modification to a proceeding under this Part. 326J Sentence in absence of offender The Court of Appeal may impose a sentence on a person under this Part even though the person does not attend the hearing of an appeal or an application to the Court of Appeal. Note The Court of Appeal cannot impose a sentence that requires the consent of the person, for example a community correction order, in the absence of the person. -- 83 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 82 Authorised by the Chief Parliamentary Counsel 326K Bail following appeal If on an appeal under this Part the Court of Appeal orders a new trial, the Court of Appeal may remand the appellant in custody or grant the appellant bail pending the commencement of the new trial. Note Section 326E(2) requires the Court of Appeal to order that the appellant attend on a specified date for the new trial. 326L Warrants For the purposes of this Part, the Court of Appeal may issue any warrant necessary for enforcing the orders of the court. 326M Ancillary orders (1) On an appeal under this Part, the Court of Appeal may set aside or vary an ancillary order, if the court is satisfied that it is in the interests of justice to do so. (2) In this section— ancillary order means an order (other than the order that is the subject of the appeal) made by the originating court in the proceeding or by the Court of Appeal on an earlier appeal.". 36 No costs on appeal to Court of Appeal or on a new trial In section 409(a) of the Criminal Procedure Act 2009, after "6.3" insert "or 6.4". -- 84 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 83 Authorised by the Chief Parliamentary Counsel Division 4—Transitional provisions 37 New sections 453 and 454 inserted After section 452 of the Criminal Procedure Act 2009 insert— "453 Transitional provision—Justice Legislation Amendment (Criminal Appeals) Act 2019—powers of Court of Appeal, second or subsequent appeals (1) Section 319A applies on and from its commencement, irrespective of when the proceeding commenced. (2) Part 6.4 applies on and from the commencement of Division 3 of Part 3 of the Justice Legislation Amendment (Criminal Appeals) Act 2019 to a conviction, irrespective of when the conviction occurred. 454 Transitional provision—Justice Legislation Amendment (Criminal Appeals) Act 2019—appeals from summary jurisdiction (1) In this section— amending Act means the Justice Legislation Amendment (Criminal Appeals) Act 2019. (2) Subject to subsection (3), an amendment made to Part 6.1 or 6.3 by a provision of Division 1 of Part 3 of the amending Act applies in relation to a criminal proceeding in which the plea to the charge is entered in the Magistrates' Court after the commencement of that provision. -- 85 of 89 -- Part 3—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 84 Authorised by the Chief Parliamentary Counsel (3) Despite the repeal of sections 283, 284, 284A, 285 and 286 by the amending Act, on and after that repeal, those provisions, as in force immediately before that repeal, continue to apply in relation to a sentence of imprisonment imposed by the appellate court under section 256, 259 or 262— (a) before that repeal; or (b) following a plea of guilty entered before that repeal; or (c) following a conviction entered on a hearing that commenced before that repeal.". -- 86 of 89 -- Part 4—Amendment of other Acts Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 85 Authorised by the Chief Parliamentary Counsel Part 4—Amendment of other Acts 38 Consequential amendments—Supreme Court Act 1986 (1) In section 113O(a) of the Supreme Court Act 1986, after "6.3" insert "or 6.4". (2) In section 113P(a) of the Supreme Court Act 1986, after "6.3" insert "or 6.4". -- 87 of 89 -- Part 5—Repeal of amending Act Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 86 Authorised by the Chief Parliamentary Counsel Part 5—Repeal of amending Act 39 Repeal of amending Act This Act is repealed on 3 July 2022. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═════════════ -- 88 of 89 -- Endnotes Justice Legislation Amendment (Criminal Appeals) Act 2019 No. 44 of 2019 87 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 17 October 2019 Legislative Council: 31 October 2019 The long title for the Bill for this Act was "A Bill for an Act to amend the Children, Youth and Families Act 2005 and the Criminal Procedure Act 2009 in relation to certain appeals and the powers of the Court of Appeal and to make consequential amendments to the Supreme Court Act 1986 and for other purposes." -- 89 of 89 --