Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 (106 of 2009)
Schedule 1 Amendments
Part 1 Main amendments
Federal Court of Australia Act 1976
3 After Division 2 of Part III
Insert:
Division 2A - Appellate and related jurisdiction (criminal proceedings)
Subdivision A - Bringing appeals
30AA Appellate jurisdiction - allowable appeals
Appeals about indictable offences
(1) The Court has jurisdiction to hear and determine an appeal from a judgment of an eligible primary court to the extent the judgment:
(a) convicts the accused of a count in an indictment; or
(b) sentences the accused in relation to a count in an indictment; or
(c) acquits the accused of a count in an indictment as a result of the court (rather than a jury) finding that the accused had no case to answer; or
(d) acquits the accused because of mental illness in relation to a count in an indictment; or
(e) in the case of a judgment of the Court constituted by a single Judge - consists of one or more orders, determinations or findings under Division 6 or 9 of Part IB of the Crimes Act 1914.
Appeals against summary judgments
(2) The Court has jurisdiction to hear and determine an appeal from a judgment of:
(a) the Court constituted by a single Judge; or
(b) the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory); or
(c) in such cases as are provided by any other Act, a court (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory exercising federal jurisdiction;
in proceedings to try an offence summarily.
Appeals about bail and forfeiture of bail security
(3) The Court has jurisdiction to hear and determine an appeal from a judgment of the Court under Part VIB (bail).
Appeals against interim judgments and decisions
(4) The Court has jurisdiction to hear and determine an appeal from a judgment or decision (however described) of the Court constituted by a single Judge if the judgment or decision is made:
(a) in indictable primary proceedings; and
(b) before the making of a judgment to acquit, discharge, convict or sentence the accused of the count in the indictment to which the judgment or decision relates;
and is not a judgment under Part VIB (bail) or an order discharging the jury or a juror.
Note: This subsection gives jurisdiction to hear, for example, appeals from decisions remanding the accused in custody under section 23HA.
Relationship to other Acts
(5) This section has effect subject to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal).
30AB Leave needed unless question of law or about bail
(1) An appeal under section 30AA cannot be brought from a judgment referred to in subsection 30AA(1) or (2) unless:
(a) the Court or a Judge gives leave to appeal; or
(b) the appeal involves a question of law alone.
(2) An appeal under section 30AA cannot be brought from a judgment or decision of a Judge referred to in subsection 30AA(4) unless that Judge gives leave to appeal.
30AC Who may appeal
(1) The accused and the prosecutor, in relation to a judgment or decision referred to in section 30AA, may:
(a) make an application referred to in subsection 30AE(2) or (3) in relation to the judgment or decision; and
(b) in accordance with this Division, bring an appeal from the judgment or decision.
(2) However, the prosecutor cannot act under subsection (1) in the case of a judgment covered by paragraph 30AA(1)(d).
30AD Appellate jurisdiction - further appeal if Attorney-General consents
(1) The Attorney-General may consent in writing for the accused to appeal under this section if:
(a) the accused applies for this consent; and
(b) the accused satisfies the Attorney-General that there is a doubt or question about either or both of the following:
(i) the accused’s conviction by an eligible primary court of a count in an indictment;
(ii) the accused’s sentence imposed by an eligible primary court in relation to a count in an indictment.
(2) If the Attorney-General consents under subsection (1), the Court has jurisdiction to hear and determine:
(a) an appeal from a judgment of the eligible primary court, to the extent the judgment so convicts the accused; and
(b) an appeal from a judgment of the eligible primary court, to the extent the judgment so sentences the accused.
(3) Subsection (1) has effect subject to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal).
30AE Exercise of appellate jurisdiction
(1) The appellate jurisdiction of the Court referred to in sections 30AA and 30AD must, subject to any other Act, be exercised by a Full Court.
(2) Applications:
(a) for leave to appeal under subsection 30AA(1) or (2); or
(b) for an extension of time within which to file:
(i) a notice of application for leave to appeal under subsection 30AA(1) or (2); or
(ii) a notice of appeal under subsection 30AA(1) or (2) for an appeal involving a question of law alone; or
(iii) a notice of appeal under subsection 30AA(3); or
(c) for leave to amend the grounds of an appeal under subsection 30AA(1), (2) or (3); or
(d) to stay an order of a Full Court;
must be heard and determined by a single Judge unless:
(e) a Judge directs that the application be heard and determined by a Full Court; or
(f) the application is made in a proceeding that has already been assigned to a Full Court, and the Full Court considers it is appropriate for it to hear and determine the application.
(3) Applications:
(a) for leave to appeal a judgment or decision of a Judge referred to in subsection 30AA(4); or
(b) for an extension of time within which to file a notice of application for leave to appeal under that subsection; or
(c) for leave to amend the grounds of an appeal under that subsection;
must be heard and determined by the Judge who made the judgment or decision.
(4) In relation to criminal appeal proceedings, a single Judge (sitting in Chambers or in open court) or a Full Court may:
(a) join or remove a party to an appeal to the Court; or
(b) make an order by consent disposing of an appeal to the Court; or
(c) make an order that an appeal to the Court be dismissed for want of prosecution; or
(d) make an order that an appeal to the Court be dismissed for:
(i) failure to comply with a direction of the Court; or
(ii) failure of the appellant to attend a hearing relating to the appeal; or
(e) vary or set aside an order under paragraph (c) or (d); or
(f) give directions about the conduct of an appeal to the Court, including directions about:
(i) the use of written submissions; and
(ii) limiting the time for oral argument.
(4A) An application for the exercise of a power mentioned in subsection (4) must be heard and determined by a single Judge unless:
(a) a Judge directs that the application be heard and determined by a Full Court; or
(b) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.
(5) The Rules of Court may make provision enabling an application of the kind mentioned in subsection (2), (3) or (4A) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.
(6) The Court constituted by a single Judge may state any case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the Judge to a Full Court of the Court for the consideration of a Full Court. The Full Court has jurisdiction to hear and determine the case or question.
(7) Subsections 25(3) and (4) (appeals from Supreme Court of a Territory) apply to appellate jurisdiction under this Division in a corresponding way to the way in which they apply to appellate jurisdiction under Division 2.
30AF Time for appealing
(1) This section applies in relation to the filing of:
(a) a notice of application for leave to appeal under subsection 30AA(1), (2) or (4); or
(b) a notice of appeal under subsection 30AA(1) or (2) for an appeal involving a question of law alone; or
(c) a notice of appeal under subsection 30AA(3);
in relation to a judgment or decision.
Note: There are no time limits for an appeal under section 30AD.
(2) The notice must be filed in the Court before the end of 28 days after the end of:
(a) in the case of a judgment convicting the accused - the day the accused is sentenced in relation to the conviction; or
(b) in the case of a judgment sentencing the accused - the day the accused is so sentenced; or
(c) in the case of a judgment or decision referred to in paragraph 30AA(1)(e) or subsection 30AA(3) or (4) - the day the judgment or decision was made; or
(d) otherwise - the day the accused is discharged in relation to the proceedings in which the judgment was given.
(3) However, the Court may, by order, extend (or further extend) the period within which the notice must be filed if the Court is satisfied it is in the interests of justice to do so.
30AG Right to attend
A party to an appeal brought under this Division is entitled to be present at the hearing of the appeal, unless:
(a) the Court orders otherwise; or
(b) the Court, under subsection 47B(1), directs or allows the party to appear by way of video link, audio link or other appropriate means.
30AH Practice and procedure applicable to the appeal
Unless the Court orders otherwise:
(a) the laws of the Commonwealth; and
(b) the laws of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; and
(c) the Rules of Court;
relating to the practice and procedure to be followed during criminal appeal proceedings, are to be those in force at the time the following notice is filed in the Court:
(d) if the appeal cannot be brought unless leave is given - the notice of application for leave to appeal;
(e) otherwise - the notice of appeal.
30AI Evidence on appeal
(1) In an appeal under this Division, the Court:
(a) must have regard to the evidence given in the proceedings out of which the appeal arose; and
(b) may draw inferences of fact; and
(c) may, if satisfied it is in the interests of justice to do so, receive further evidence, which may be taken:
(i) on affidavit; or
(ii) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or
(iii) by oral examination before the Court or a Judge; or
(iv) otherwise in accordance with section 46.
Note: Paragraph (c) does not require the Court to receive further evidence. For example, if the failure to adduce the evidence during the trial is not satisfactorily explained.
(2) The Court may receive further evidence under paragraph (1)(c) by:
(a) directing the evidence be taken by a single Judge; and
(b) having regard to the findings of that Judge in relation to that evidence.
30AJ When to allow appeals
Appeals against conviction
(1) The Court must allow an appeal under section 30AA from a judgment convicting the accused if the Court is satisfied:
(a) that the verdict of the jury (if any) 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 should be set aside on the ground of a wrong decision of any question of law; or
(c) that there has been a substantial miscarriage of justice.
(2) However, if the Court is satisfied of a matter in paragraph (1)(a) or (b), the Court may dismiss the appeal if the Court is satisfied that there has not been a substantial miscarriage of justice.
Appeals against sentence
(3) The Court must allow an appeal under section 30AA from a judgment sentencing the accused if the Court is satisfied that some other sentence (whether more or less severe) is warranted in law.
Other appeals under section 30AA
(4) The Court may allow any other appeal under section 30AA if the Court is satisfied it is in the interests of justice to do so.
Final appeals
(5) The Court may allow an appeal covered by section 30AD if the Court is satisfied that it would be a miscarriage of justice not to allow the appeal.
30AK Stay or suspension of orders pending appeal
(1) If an appeal to the Court has been instituted under this Division in relation to a judgment or decision (the appealed decision ), the Court or a Judge may make an order, on such conditions (if any) as the Court or Judge thinks fit, to stay or otherwise affect the operation or implementation of, any order arising from the appealed decision.
(2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the stay or suspension of orders.
30AL Prison sentence not to include time on bail
If:
(a) a person is convicted of an indictable offence and sentenced to a term of imprisonment; and
(b) the person appeals to the Court under this Division against the conviction or sentence, or both;
any time during which the person is released on bail pending the determination of the appeal does not count as part of the term of imprisonment to which the person has been sentenced.
Subdivision B - Form of judgment on appeal
30BA Court may give such judgment as is appropriate
(1) The Court may, by order, when exercising its appellate jurisdiction under this Division:
(a) dismiss or allow the appeal; and
(b) take such other action as it thinks appropriate in the circumstances.
(2) Without limiting subsection (1), the other action the Court can take if it allows an appeal includes that set out in sections 30BB to 30BG.
30BB Allowing appeals against convictions on indictment
(1) This section applies if the Court allows an appeal covered by paragraph 30AA(1)(a) or 30AD(2)(a).
(2) The Court may:
(a) set aside the conviction (with or without an order for a new trial); or
(b) acquit the accused of the count.
(3) The Court may substitute a guilty verdict for an offence (the substituted offence ) other than the offence to which the appeal relates (the appealed offence ) if:
(a) an Act allowed the jury to find the accused not guilty of the appealed offence but guilty of the substituted offence; and
(b) the Court is satisfied that:
(i) the guilty verdict relating to the appealed offence cannot stand; and
(ii) the jury must have been satisfied of facts that prove the accused guilty of the substituted offence; and
(c) the Court substitutes the guilty verdict in accordance with that other Act.
(4) The Court may substitute a guilty verdict for an offence (the substituted offence ) other than the offence to which the appeal relates (the appealed offence ) if the Court is satisfied that:
(a) the Court has jurisdiction to try a person for the substituted offence; and
(b) the maximum penalty for the substituted offence does not exceed the maximum penalty for the appealed offence; and
(c) the guilty verdict relating to the appealed offence cannot stand; and
(d) the substituted offence is covered by the same indictment as the appealed offence; and
(e) the jury must have been satisfied of facts that prove the accused guilty of the substituted offence.
(5) For a guilty verdict substituted under subsection (3) or (4), the Court may:
(a) sentence the accused in relation to the substituted offence; and
(b) set aside the conviction and sentence relating to the appealed offence.
The accused is taken to be convicted of the substituted offence unless the Court makes an order under section 19B of the Crimes Act 1914 when sentencing the accused for the substituted offence.
30BC Allowing appeals against sentence
(1) This section applies if the Court allows an appeal covered by paragraph 30AA(1)(b) or 30AD(2)(b).
(2) The Court may:
(a) increase or decrease the sentence; or
(b) substitute a different sentence; or
(c) in the case of an appeal against a judgment in which one or more orders were made under subsection 19B(1) of the Crimes Act 1914:
(i) vary or set aside any or all of the orders; or
(ii) set aside the orders, record a conviction of the accused and sentence the accused.
30BD Allowing appeals for certain acquittals
(1) This section applies if the Court allows an appeal covered by paragraph 30AA(1)(c) or (d).
(2) The Court may:
(a) set aside the acquittal; and
(b) order that there be, or not be, a new trial.
30BE Allowing appeals involving unfitness, mental illness etc.
(1) This section applies if the Court allows an appeal covered by paragraph 30AA(1)(e).
(2) The Court may vary or set aside:
(a) the order, determination or finding; and
(b) any related orders, determinations or findings.
30BF Allowing appeals from summary proceedings
(1) This section applies if the Court allows an appeal covered by subsection 30AA(2).
(2) For an appeal against conviction, the Court may set aside the conviction, and:
(a) record an acquittal; or
(b) remit the matter to the Judge for further hearing (with or without directions), or to a different Judge for a new hearing (with or without directions).
(3) For an appeal against sentence, the Court may:
(a) increase or decrease the sentence; or
(b) substitute a different sentence.
(4) For an appeal against a judgment in which one or more orders were made under Division 8 of Part IB, or subsection 19B(1), of the Crimes Act 1914, the Court may:
(a) vary or set aside any or all of the orders; and
(b) if it sets aside an order, record a conviction of the accused and/or sentence the accused.
(5) For an appeal against acquittal, the Court may set aside the acquittal, and:
(a) record a conviction; or
(b) remit the matter to the Judge for further hearing (with or without directions), or to a different Judge for a new hearing (with or without directions).
30BG Allowing appeals against bail, bail forfeiture or interim judgments and decisions (including about custody)
(1) This section applies if the Court allows an appeal covered by subsection 30AA(3) or (4).
(2) The Court may, in every case:
(a) set aside the judgment or decision (the appealed decision ); or
(b) vary the appealed decision; or
(c) substitute a new judgment or decision for the appealed decision;
and make orders about custody or bail.
(3) The Court may, if it allows an appeal covered by subsection 30AA(4), order the continuation or cessation of the proceedings in which the appealed decision was made.
30BH Matters relevant to form of judgment on appeal
(1) The powers in this Subdivision may be exercised even though the notice of appeal asks that only part of the judgment or decision be reversed or varied.
(2) For the purposes of sentencing an accused under this Subdivision (including by way of substituting a different sentence), the Court’s powers are taken to include those of the court from which the appeal was made.
Note: This means the Court could, for example, sentence the accused by making an order under section 19B of the Crimes Act 1914.
(3) This Subdivision has effect subject to section 80 of the Constitution and to any other Act.
Subdivision C - References
30CA Cases stated and questions reserved
Cases/questions from proceedings other than committal proceedings
(1) A court in proceedings from which appeals lie under section 30AA (other than proceedings covered by subsection (2)) may state any case or reserve any question concerning a matter with respect to which such an appeal would lie for the consideration of the Court.
Cases/questions from committal proceedings
(2) If, in proceedings before a court of a State or Territory (the committals court ), the court:
(a) can, under subsection 68A(2) of the Judiciary Act 1903, commit a person for trial or sentencing before either:
(i) the Court; or
(ii) a superior court of the State or Territory; and
(b) can, under a law of the State or Territory, state a case or reserve a question for the consideration of that superior court;
the committals court may instead choose to state the case or reserve the question for the consideration of the Court.
General rules
(3) The Court has jurisdiction to hear and determine a case or question it receives under subsection (1) or (2).
(4) Subject to any other Act, this jurisdiction of the Court:
(a) if the court stating the case or reserving the question is not a court of summary jurisdiction - must be exercised by a Full Court; or
(b) otherwise - may be exercised by a single Judge or by a Full Court.
(5) A court must not state a case, or reserve a question concerning a matter referred to in subsection (1), to a court other than the Court.
30CB Questions referred after trial
(1) If a judgment of the Court acquits a person following a trial on indictment for an indictable offence, the prosecutor may apply to the Court or a Judge for leave to refer a question of law arising from the judgment to a Full Court for its determination.
(2) If leave is granted, both the prosecutor and the acquitted person may make submissions to the Full Court in relation to the Court’s determination of the question of law.
(3) A determination made by the Court on the question of law does not affect the person’s acquittal.
(4) The Court may make orders to ensure each party to proceedings under this section is adequately represented in those proceedings. This subsection has effect despite section 30DA.
Subdivision D - Other
30DA Costs
Nothing in this Act gives the Court power to award costs in:
(a) criminal appeal proceedings; or
(b) proceedings before the Court under section 30CA or 30CB; or
(c) proceedings referred to the Court under section 20B of the Crimes Act 1914 (as that section applies because of subsection 68A(6) of the Judiciary Act 1903).