Victorian Current Acts Victorian Current Acts(1) If the Court of Appeal allows an appeal under section 274, it must set aside the conviction of the offence ("offence A") and must—
(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
S. 277(1)(c)(ii) amended by No. 6/2017 s. 8.
(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;
(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
(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 .
S. 277(2) amended by No. 68/2009 s. 25(1).
(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 to s. 277(2) inserted by No. 68/2009 s. 25(2).
Note
Section 323 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.
(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—Appeal by offender against sentence