Section 386 — Crimes Act 1961: Powers of appellate courts in special cases

386 Powers of appellate courts in special cases (1) If on any appeal under section 383 of this Act it appears to the Court of Appeal or the Supreme Court that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed on the appellant or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant has been properly convicted. (2) Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal or the Supreme Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed as may be warranted in law for that other offence, not being a sentence of greater severity. (3) Where on the conviction of the appellant the jury has found a special verdict, and the Court of Appeal or the Supreme Court considers that a wrong conclusion has been arrived at by the Court before which the appellant has been convicted on the effect of that verdict, the Court of Appeal or the Supreme Court may, instead of allowing the appeal, order such conclusion to be recorded as appears to the Court to be in law required by the verdict, and pass such sentence in substitution for the sentence passed as may be warranted in law. (4) If on any such appeal it appears to the Court of Appeal or the Supreme Court that the appellant was insane at the time of the commission of the offence and should have been acquitted on account of his insanity, the Court may quash the conviction; and thereupon sections 23 to 26 , 28 , and 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 shall apply, so far as they are applicable, as if he had been so acquitted and as if references in any of those sections to the Court were references to the Court of Appeal or the Supreme Court (as the case requires). Compare: 1945 No 23 s 5 The heading to section 386 was amended, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53) by substituting the words “ appellate courts ” for the words “ Court of Appeal ” . 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 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 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 (3) 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 ” in both places where they occur. See sections 50 to 55 of that Act for the transitional and savings provisions. Subsection (4) was substituted, as from 1 April 1970, by section 5(1) Criminal Justice Amendment Act 1969 (1969 No 17). Subsection (4) was amended, as from 1 October 1985, by section 12 Crimes Amendment Act (No 2) 1985 (1985 No 121) by substituting the expression “ sections 115, 117, and 119 of the Criminal Justice Act 1985 ” for the expression “ sections 39G, 39I, and 39K of the Criminal Justice Act 1954 ” . Subsection (4) 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 ” where they first occur. See sections 50 to 55 of that Act for the transitional and savings provisions. Subsection (4) 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 (as the case requires) ” after the words “ Court of Appeal ” where they secondly occur. See sections 50 to 55 of that Act for the transitional and savings provisions. Subsection (4) was amended, as from 1 September 2004, by section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115) by substituting the words “ sections 23 to 26, 28, and 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 ” for the words “ sections 115, 117, and 119 of the Criminal Justice Act 1985 ” . See clause 2 Criminal Procedure (Mentally Impaired Persons) Act Commencement Order 2004 (SR 2004/147).