Crimes Act 1914

Part IB - Sentencing, imprisonment and release of federal offenders

Division 6 - Unfitness to be tried

SECTION 20BI Appeals against some Victorian jury findings of unfitness to be tried

(1)
This section applies if:

(a) in proceedings for a federal offence in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria, a question arises whether the accused is fit to stand trial; and

(b) a jury finds that the accused is unfit.

Right to appeal

(2)
The accused may appeal to the Court of Appeal of Victoria against the finding:

(a) on a ground involving only one or more questions of law alone; or

(b) on a ground involving one or more questions of fact alone, or one or more questions of mixed law and fact, if the judge before whom the accused came for trial certifies the ground is fit for appeal; or

(c) on any ground if the Court of Appeal gives leave.

Decision on appeal

(3)
The Court of Appeal must allow the appeal if the court thinks that:

(a) the finding should be set aside because it is unreasonable or cannot be supported having regard to the evidence; or

(b) the order of the Supreme Court or County Court giving effect to the finding should be set aside because of a wrong decision on a question of law; or

(c) there was a miscarriage of justice.

(4)
Otherwise, the Court of Appeal must dismiss the appeal.

(5)
Despite subsection (3), the Court of Appeal may dismiss the appeal if the Court of Appeal thinks that no substantial miscarriage of justice has occurred.

Consequences if appeal allowed

(6)
If the Court of Appeal allows the appeal:

(a) the accused may be tried for the federal offence; and

(b) the Court of Appeal may make orders for the custody or bail of the accused.

Rules of court

(7)
Rules of court for the Court of Appeal of Victoria may make provision relating to appeals under subsection (2) and proceedings relating to orders under paragraph (6)(b).

Relationship with the rest of this Division

(8)
This Division has effect subject to this section.

View history note

History

S 20BI inserted by No 4 of 2010, s 3 and Sch 6 item 1, applicable to findings made before, on or after the commencement time, yet to occur (immediately after the commencement of subsection 369(4) of the Criminal Procedure Act 2009 of Victoria). No 4 of 2010, s 3 and Sch 6 item 3 also contains the following transitional provision:

Transitional provision
(1)
If appeal proceedings were started under section 570C of the Crimes Act 1958 of Victoria before the repeal of that section but those proceedings (including any proceedings for orders under subsection 570C(2) of that Act following the allowing of the appeal) were not completed before that repeal:

(a) section 20BI of the Crimes Act 1914 does not apply in relation to the finding that was the subject of the appeal proceedings, despite item 2; and

(b) the following provisions of the Crimes Act 1958 of Victoria, as in force immediately before their repeal by the Criminal Procedure Act 2009 of Victoria, continue to apply (as laws of the Commonwealth) in relation to the finding despite that repeal:

(i) section 570C;

(ii) section 570A as applied by section 570C;

(iii) other provisions so far as they relate to section 570C or section 570A as applied by section 570C.

Note 1:

Before their repeal those provisions applied because of section 68 of the Judiciary Act 1903 .

Note 2:

Section 570C of the Crimes Act 1958 of Victoria provided for appeals to the Court of Appeal of Victoria from a finding by a jury in proceedings in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria that the accused was not fit to stand trial.

Note 3:

Section 570C of the Crimes Act 1958 of Victoria provided for appeals by applying section 570A of that Act with modifications. Other provisions of that Act (such as section 570D and Division 3 of Part VI) related to appeals to the Court of Appeal (including appeals under section 570C of that Act).

(2)
An instrument in force for the purposes of any of those provisions immediately before the repeal described in paragraph (1)(b) of the provision continues in force (despite that repeal) for the purposes of that provision as it continues to apply because of that paragraph.

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