Crimes (Appeal and Review) Act 2001 No 120
Current version for 20 May 2014 to date (accessed 28 November 2014 at 16:42)
Part 8Division 2

Division 2 Retrial after acquittal for very serious offence

99   Application of Division

(1)  This Division applies where:
(a)  a person has been acquitted of an offence, and
(b)  according to the rules of law relating to double jeopardy (including rules based on abuse of process), the person is thereby precluded or may thereby be precluded from being retried for the same offence, or from being tried for some other offence, in proceedings in this State.
Note. Under section 100 a person to whom this Division applies can only be retried for a life sentence offence (in the case of fresh or compelling evidence). Under section 101 a person to whom this Division applies can only be retried for a 15 years or more sentence offence (in the case of a tainted acquittal).
(2)  This section extends to a person acquitted in proceedings outside this State of an offence under the law of the place where the proceedings were held. However, this section does not so extend if the law of that place does not permit that person to be retried and the application of this Division to such a retrial is inconsistent with the Commonwealth Constitution or a law of the Commonwealth.
(3)  This section extends to a person acquitted before the commencement of this Division.

100   Court of Criminal Appeal may order retrial—fresh and compelling evidence

(1)  The Court of Criminal Appeal may, on the application of the Director of Public Prosecutions, order an acquitted person to be retried for a life sentence offence if satisfied that:
(a)  there is fresh and compelling evidence against the acquitted person in relation to the offence, and
(b)  in all the circumstances it is in the interests of justice for the order to be made.
(2)  If the Court of Criminal Appeal orders an acquitted person to be retried, the Court is to quash the person’s acquittal or remove the acquittal as a bar to the person being retried for the offence (as the case requires).
(3)  The Court of Criminal Appeal may order a person to be retried for a life sentence offence under this section even if the person had been charged with and acquitted of manslaughter or other lesser offence.
(4)  The Court of Criminal Appeal cannot order a person to be retried for a life sentence offence under this section where the person had been charged with and acquitted of the life sentence offence but had been convicted instead of manslaughter or other lesser offence.

101   Court of Criminal Appeal may order retrial—tainted acquittals

(1)  The Court of Criminal Appeal may, on the application of the Director of Public Prosecutions, order an acquitted person to be retried for a 15 years or more sentence offence if satisfied that:
(a)  the acquittal is a tainted acquittal, and
(b)  in all the circumstances it is in the interests of justice for the order to be made.
(2)  If the Court of Criminal Appeal orders an acquitted person to be retried, the Court is to quash the person’s acquittal or remove the acquittal as a bar to the person being retried for the offence (as the case requires).
(3)  The Court of Criminal Appeal may order a person to be retried for a 15 years or more sentence offence under this section even if the person had been charged with and acquitted of a lesser offence.

102   Fresh and compelling evidence—meaning

(1)  This section applies for the purpose of determining under this Division whether there is fresh and compelling evidence against an acquitted person in relation to an offence.
(2)  Evidence is fresh if:
(a)  it was not adduced in the proceedings in which the person was acquitted, and
(b)  it could not have been adduced in those proceedings with the exercise of reasonable diligence.
(3)  Evidence is compelling if:
(a)  it is reliable, and
(b)  it is substantial, and
(c)  in the context of the issues in dispute in the proceedings in which the person was acquitted, it is highly probative of the case against the acquitted person.
(4)  Evidence that would be admissible on a retrial under this Division is not precluded from being fresh and compelling evidence merely because it would have been inadmissible in the earlier proceedings against the acquitted person.

103   Tainted acquittals—meaning

(1)  This section applies for the purpose of determining under this Division whether the acquittal of an accused person is a tainted acquittal.
(2)  An acquittal is tainted if:
(a)  the accused person or another person has been convicted (in this State or elsewhere) of an administration of justice offence in connection with the proceedings in which the accused person was acquitted, and
(b)  it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted.
(3)  An acquittal is not a tainted acquittal if the conviction for the administration of justice offence is subject to appeal as of right.
(4)  If the conviction for the administration of justice offence is, on appeal, quashed after the Court of Criminal Appeal has ordered the acquitted person to be retried under this Division because of the conviction, the person may apply to the Court to set aside the order and:
(a)  to restore the acquittal that was quashed, or
(b)  to restore the acquittal as a bar to the person being retried for the offence,
as the case requires.

104   Interests of justice—matters for consideration

(1)  This section applies for the purpose of determining under this Division whether it is in the interests of justice for an order to be made for the retrial of an acquitted person.
(2)  It is not in the interests of justice to make an order for the retrial of an acquitted person unless the Court of Criminal Appeal is satisfied that a fair retrial is likely in the circumstances.
(3)  The Court is to have regard in particular to:
(a)  the length of time since the acquitted person allegedly committed the offence, and
(b)  whether any police officer or prosecutor has failed to act with reasonable diligence or expedition in connection with the application for the retrial of the acquitted person.

105   Application for retrial—procedure

(1)  Not more than one application for the retrial of an acquitted person may be made under this Division in relation to an acquittal.
(1A)  An application may be made for a further retrial of a person acquitted in a retrial under this Part but only if it is made on the basis that the acquittal at the retrial was tainted.
(2)  An application for the retrial of an acquitted person cannot be made under this Division unless the person has been charged with the offence for which a retrial is sought or a warrant has been issued for the person’s arrest in connection with such an offence.
Note. Section 109 requires the Director of Public Prosecutions’ approval for the arrest of the accused or for the issue of a warrant for his or her arrest.
(3)  The application is to be made not later than 28 days after the person is so charged with that offence or the warrant is so issued for the person’s arrest. The Court of Criminal Appeal may extend that period for good cause.
(4)  The Court of Criminal Appeal must consider the application at a hearing.
(5)  The person to whom the application relates is entitled to be present and heard at the hearing (whether or not the person is in custody). However, the application can be determined even if the person is not present so long as the person has been given a reasonable opportunity to be present.
(6)  The powers of the Court of Criminal Appeal under section 12 of the Criminal Appeal Act 1912 may be exercised in connection with the hearing of the application.
(7)  The Court of Criminal Appeal may at one hearing consider more than one application under this Division for a retrial (whether or not relating to the same person), but only if the offences concerned should be tried on the same indictment.
(8)  If the Court of Criminal Appeal determines in proceedings on an application under this Division that the acquittal is not a bar to the person being retried for the offence concerned, it must make a declaration to that effect.

106   Retrial

(1)  An indictment for the retrial of a person that has been ordered under this Division cannot, without the leave of the Court of Criminal Appeal, be presented after the end of the period of 2 months after the order was made.
(2)  The Court must not give leave unless it is satisfied that:
(a)  the prosecutor has acted with reasonable expedition, and
(b)  there is good and sufficient cause for the retrial despite the lapse of time since the order was made.
(3)  If, after the end of the period of 2 months after an order for the retrial of an accused person was made under this Division, an indictment for the retrial of the person has not been presented or has been withdrawn or quashed, the person may apply to the Court of Criminal Appeal to set aside the order for the retrial and:
(a)  to restore the acquittal that was quashed, or
(b)  to restore the acquittal as a bar to the person being tried for the offence,
as the case requires.
(4)  If the order is set aside, a further application cannot be made under this Division for the retrial of the accused person in respect of the offence concerned.
(5)  At the retrial of an accused person, the prosecution is not entitled to refer to the fact that the Court of Criminal Appeal has found that it appears that there is fresh and compelling evidence against the acquitted person or, as the case requires, that it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted.
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