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TASMANIA
__________
CRIMINAL CODE AMENDMENT (SECOND OR
SUBSEQUENT APPEAL FOR FRESH AND
COMPELLING EVIDENCE) BILL 2015
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Schedule 1 amended (Criminal Code)
5. Repeal of Act
[Bill 42]-II
2
CRIMINAL CODE AMENDMENT (SECOND OR
SUBSEQUENT APPEAL FOR FRESH AND
COMPELLING EVIDENCE) BILL 2015
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
22 September 2015
(Brought in by the Premier, the Honourable William Edward
Felix Hodgman)
A BILL FOR
An Act to amend the Criminal Code Act 1924
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Criminal Code
Amendment (Second or Subsequent Appeal for
Fresh and Compelling Evidence) Act 2015.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 42] 3
Criminal Code Amendment (Second or Subsequent Appeal for
Fresh and Compelling Evidence) Act 2015
Act No. of
s. 3
3. Principal Act
In this Act, the Criminal Code Act 1924* is
referred to as the Principal Act.
4. Schedule 1 amended (Criminal Code)
Schedule 1 to the Principal Act is amended as
follows:
(a) by omitting from section 393(1)(a)
"appears to be" and substituting "is";
(b) by inserting the following section after
section 402:
402A. Second or subsequent appeal by
convicted person on fresh and
compelling evidence
(1) In this section -
convicted person means a
person who, before a
court of trial, has been -
(a) convicted of a
serious crime; or
(b) acquitted of a
serious crime on
the ground of
insanity -
*No. 69 of 1924
4
Criminal Code Amendment (Second or Subsequent Appeal for
Fresh and Compelling Evidence) Act 2015
Act No. of
s. 4
whether that conviction or
acquittal occurred before
or after the
commencement of this
section;
fresh and compelling evidence
has the meaning given by
subsection (10);
serious crime means a crime
punishable upon
indictment listed in
Appendix D.
(2) The Court may hear a second or
subsequent appeal by a convicted
person if the person has been
granted leave to appeal under this
section.
(3) A convicted person may apply to
a single judge for leave to lodge a
second or subsequent appeal
against the conviction on the
ground that there is fresh and
compelling evidence.
(4) At any time after receiving an
application for leave to appeal
under this section, the single
judge may refer the matter to the
Court for determination.
(5) On hearing the application of a
convicted person for leave to
5
Criminal Code Amendment (Second or Subsequent Appeal for
Fresh and Compelling Evidence) Act 2015
Act No. of
s. 4
appeal, the single judge or
Court -
(a) must grant leave to appeal
if satisfied that -
(i) the convicted
person has a
reasonable case to
present to the
Court in support
of the ground of
the appeal; and
(ii) it is in the interests
of justice for the
leave to be
granted; and
(b) must refuse to grant leave
to appeal if not so
satisfied.
(6) The Court may uphold the second
or subsequent appeal of a
convicted person if satisfied
that -
(a) there is fresh and
compelling evidence; and
(b) after taking into account
the fresh and compelling
evidence, there has been a
substantial miscarriage of
justice.
6
Criminal Code Amendment (Second or Subsequent Appeal for
Fresh and Compelling Evidence) Act 2015
Act No. of
s. 4
(7) The Court may dismiss the
second or subsequent appeal of a
convicted person if not satisfied
as specified in subsection (6).
(8) If the Court upholds the second or
subsequent appeal of a convicted
person, the Court may quash the
conviction and either -
(a) direct that a judgement
and verdict of acquittal be
entered; or
(b) under section 404, order
that a new trial be held.
(9) If the Court orders under
subsection (8)(b) that a new trial
be held, the Court -
(a) may make such other
orders as the Court thinks
fit for the safe custody of
the person who is to be
retried or for admitting
the person to bail; but
(b) may not make any other
order directing the court
that is to retry the person
on the charge to convict
or sentence the person.
7
Criminal Code Amendment (Second or Subsequent Appeal for
Fresh and Compelling Evidence) Act 2015
Act No. of
s. 4
(10) Evidence relating to the serious
crime of which a convicted
person was convicted -
(a) is fresh evidence if -
(i) it was not adduced
at the trial of the
convicted person;
and
(ii) it could not, even
with the exercise
of reasonable
diligence, have
been adduced at
that trial; and
(b) is compelling evidence
if -
(i) it is reliable; and
(ii) it is substantial;
and
(iii) in the context of
the issues in
dispute at the trial
of the convicted
person, it is highly
probative of the
case for the
convicted person.
8
Criminal Code Amendment (Second or Subsequent Appeal for
Fresh and Compelling Evidence) Act 2015
Act No. of
s. 5
(11) Evidence that would be
admissible on an appeal under
this section is not precluded from
being fresh and compelling
evidence merely because it would
have been inadmissible in the
earlier trial of the convicted
person for the serious crime of
which he or she was convicted.
(12) Section 407 does not apply to an
appeal, or an application for leave
to appeal, under this section.
(c) by omitting from section 418(2) "section
or section 401," and substituting
"section, section 401 or
section 402A(5),".
5. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
Government Printer, Tasmania 9