Section 382 — Crimes Act 1961: Powers of Court of Appeal where appeal is on question of law

382 Powers of Court of Appeal where appeal is on question of law (1) The Court of Appeal may, in its discretion, send back any case to the Court by which it was stated to be amended or restated. (2) Upon the hearing of any appeal under the foregoing provisions of this Part of this Act, other than section 379A , the Court of Appeal may— (a) Confirm the ruling appealed from; or (b) If of opinion that the ruling was erroneous, and that there has been a mistrial or that the accused has been wrongly discharged or that the prosecution has been wrongly stayed in consequence, direct a new trial; or (c) If it considers the sentence erroneous or the arrest of judgment erroneous, pass such a sentence as ought to have been passed, or set aside any sentence passed by the Court below, and remit the case to the Court below with a direction to pass the proper sentence; or (d) If of opinion, where the accused has been convicted, that the ruling was erroneous, and that the accused ought to have been acquitted, order that the conviction be set aside, which order shall be deemed to be an acquittal; or (e) In any case, whether the appeal is on behalf of the prosecutor or of the accused, direct a new trial; or (f) Make such other order as justice requires: Provided that no conviction or acquittal shall be set aside, nor any new trial directed, although it appears that some evidence was improperly admitted or rejected, or that something not according to law was done at the trial, or some misdirection given, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage of justice was thereby occasioned on the trial: Provided also that if the Court of Appeal is of opinion that any challenge was improperly disallowed a new trial shall be granted. (3) If it appears to the Court of Appeal that such wrong or miscarriage of justice affected some count only of the indictment the Court may give separate directions as to each count, and may pass sentence on any count that stands good and unaffected by such wrong or miscarriage of justice, or remit the case to the Court below with a direction to pass such sentence as justice requires. (4) The order or direction of the Court of Appeal shall be certified under the hand of the presiding Judge to the Registrar of the Court before which the case was tried, and such order or direction shall be carried into effect. Compare: 1908 No 32 ss 444(3), 445 Subsection (2) was amended, as from 1 January 1967, by section 8(4) Crimes Amendment Act 1966 (1966 No 98) by inserting the expression “ , other than section 379A, ” . Subsection (2) was amended, as from 1 December 1991, by section 11 Crimes Amendment Act 1991 (1991 No 106) by inserting the expression “ or section 379B ” . Subsection (2) was amended, as from 1 January 2001, by section 74(2) Bail Act 2000 (2000 No 38) by omitting the expression “ or section 379B ” . See section 75 of that Act as to the savings provisions. Section 382(2)(b): amended, on 26 June 2008, by section 10 of the Crimes Amendment Act (No 2) 2008 (2008 No 37).