(1) On an application under section 327H, the Court of Appeal may make any order referred to in section 327O in relation to a person who has been acquitted of an offence if the court is satisfied that—
(a) the offence is referred to in subsection (2); and
(b) any circumstances referred to in subsection (2) in respect of the offence were present in the commission of the offence; and
(c) there is fresh and compelling evidence against the person in relation to the offence; and
(d) it is likely that a new trial for that offence would be fair, having regard to—
(i) the length of time since the offence is alleged to have been committed; and
(ii) whether there has been a failure on the part of the police or the prosecution to act with reasonable diligence or expedition with respect to the making of the application; and
(iii) any other matter that the court considers relevant.
(2) Subsection (1) applies to the following offences—
(a) murder;
(b) murder contrary to section 3A of the Crimes Act 1958 (unintentional killing in the course or furtherance of a crime of violence);
(c) conspiracy to commit murder (section 321 of the Crimes Act 1958 );
(d) incitement to commit murder (section 321G of the Crimes Act 1958 );
(e) attempting to commit murder (section 321M of the Crimes Act 1958 );
(f) manslaughter;
S. 327M(2)(fa) inserted by No. 50/2019 s. 10.
(fa) workplace manslaughter (section 39G(1) or (2) of the Occupational Health and Safety Act 2004 );
S. 327M(2)(fb) inserted by No. 50/2019 s. 10.
(fb) an offence against section 144(1) of the Occupational Health and Safety Act 2004 arising in respect of a contravention of section 39G(1) of that Act;
(g) child homicide (section 5A of the Crimes Act 1958 );
S. 327M(2)(ga) inserted by No. 16/2020 s. 19.
(ga) homicide by firearm (section 5B of the Crimes Act 1958 );
(h) arson causing death (section 197A of the Crimes Act 1958 );
(i) trafficking in a drug or drugs of dependence—large commercial quantity (section 71 of the Drugs, Poisons and Controlled Substances Act 1981 );
(j) cultivation of narcotic plants—large commercial quantity (section 72 of the Drugs, Poisons and Controlled Substances Act 1981 );
S. 327M(2)(k) amended by No. 74/2014 s. 15(1).
(k) rape (section 38 of the Crimes Act 1958 ), rape by compelling sexual penetration (section 39 of the Crimes Act 1958 ) or armed robbery (section 75A of the Crimes Act 1958 ) if the offence is committed in circumstances where—
(i) torture (being the deliberate and systematic infliction over a period of time of severe pain on the victim) was involved in the commission of the offence; or
(ii) the offender caused really serious injury to the victim; or
(iii) the offender threatened to cause death or really serious injury to the victim;
(l) a substantially similar offence against a previous enactment or the law of a place outside Victoria corresponding to an offence referred to in this subsection.
S. 327N inserted by No. 81/2011 s. 17.