Section 385 — Crimes Act 1961: Determination of appeals in ordinary cases

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 must— (a) dismiss the appeal; or (b) if it thinks that a different sentence should have been passed,— (i) quash the sentence and replace it with another sentence warranted in law (whether more or less severe) that the Court thinks ought to have been passed; or (ii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or (c) remit the case to the Court that imposed the sentence with a direction that such Court take an action of the kind described in paragraph (b)(i) or (ii) in accordance with any directions given by the Court of Appeal or the Supreme Court as the case may be. 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. Section 385(3): substituted, on 26 June 2008, by section 13 of the Crimes Amendment Act (No 2) 2008 (2008 No 37). 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.