Crimes Act 1961

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385 Determination of appeals in ordinary cases
  • (1AA) This subsection applies to—

    • (a) an appeal to the Supreme Court or the Court of Appeal against conviction:

    • (b) an appeal to the Supreme Court against a decision of the Court of Appeal on appeal under section 383 against conviction.

    (1) On any appeal to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion—

    • (a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

    • (b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

    • (c) That on any ground there was a miscarriage of justice; or

    • (d) That the trial was a nullity—

    and in any other case shall dismiss the appeal:

    Provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

    (2) Subject to the special provisions of this Part of this Act, the Court of Appeal or the Supreme Court must, if it allows an appeal to which subsection (1AA) applies, quash the conviction and in its discretion direct a judgment and verdict of acquittal to be entered, or direct a new trial, or make such other order as justice requires.

    (2A) This subsection applies to—

    • (a) an appeal to the Supreme Court or the Court of Appeal against sentence:

    • (b) an appeal to the Supreme Court against a decision of the Court of Appeal on appeal under section 383 against sentence.

    (3) On any appeal to which subsection (2A) applies, the Court of Appeal or the Supreme Court, if it thinks that a different sentence should have been passed, shall either quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the Court thinks ought to have been passed or vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; and in any other case the Court shall dismiss the appeal.

    Compare: 1945 No 23 s 4

    Subsection (1AA) was inserted, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53). See sections 50 to 55 of that Act for the transitional and savings provisions.

    Subsection (1) was amended, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53) by substituting the words to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must for the words against conviction the Court of Appeal shall. See sections 50 to 55 of that Act for the transitional and savings provisions.

    Subsection (1) proviso was amended, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53) by inserting the words or the Supreme Court after the words Court of Appeal. See sections 50 to 55 of that Act for the transitional and savings provisions.

    Subsection (2) was amended, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53) by substituting the words or the Supreme Court must, if it allows an appeal to which subsection (1AA) applies for the words shall, if it allows an appeal against conviction. See sections 50 to 55 of that Act for the transitional and savings provisions.

    Subsection (2A) was inserted, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53). See sections 50 to 55 of that Act for the transitional and savings provisions.

    Subsection (3) was amended, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53) by substituting the words to which subsection (2A) applies, the Court of Appeal or the Supreme Court for the words against sentence the Court of Appeal. See sections 50 to 55 of that Act for the transitional and savings provisions.