CRIMINAL PROCEDURE ACT 2009 - SECT 327M Determination of application where fresh and compelling evidence

CRIMINAL PROCEDURE ACT 2009 - SECT 327M

    (1)     On an application under section 327H, the Court of Appeal may make any order referred to in section 327O in relation to a person who has been acquitted of an offence if the court is satisfied that—

        (a)     the offence is referred to in subsection (2); and

        (b)     any circumstances referred to in subsection (2) in respect of the offence were present in the commission of the offence; and

        (c)     there is fresh and compelling evidence against the person in relation to the offence; and

        (d)     it is likely that a new trial for that offence would be fair, having regard to—

              (i)     the length of time since the offence is alleged to have been committed; and

              (ii)     whether there has been a failure on the part of the police or the prosecution to act with reasonable diligence or expedition with respect to the making of the application; and

              (iii)     any other matter that the court considers relevant.

    (2)     Subsection (1) applies to the following offences—

        (a)     murder;

        (b)     murder contrary to section 3A of the Crimes Act 1958 (unintentional killing in the course or furtherance of a crime of violence);

        (c)     conspiracy to commit murder (section 321 of the Crimes Act 1958 );

        (d)     incitement to commit murder (section 321G of the Crimes Act 1958 );

        (e)     attempting to commit murder (section 321M of the Crimes Act 1958 );

        (f)     manslaughter;

S. 327M(2)(fa) inserted by No. 50/2019 s. 10.

        (fa)     workplace manslaughter (section 39G(1) or (2) of the Occupational Health and Safety Act 2004 );

S. 327M(2)(fb) inserted by No. 50/2019 s. 10.

        (fb)     an offence against section 144(1) of the Occupational Health and Safety Act 2004 arising in respect of a contravention of section 39G(1) of that Act;

        (g)     child homicide (section 5A of the Crimes Act 1958 );

S. 327M(2)(ga) inserted by No. 16/2020 s. 19.

        (ga)     homicide by firearm (section 5B of the Crimes Act 1958 );

        (h)     arson causing death (section 197A of the Crimes Act 1958 );

              (i)     trafficking in a drug or drugs of dependence—large commercial quantity (section 71 of the Drugs, Poisons and Controlled Substances Act 1981 );

        (j)     cultivation of narcotic plants—large commercial quantity (section 72 of the Drugs, Poisons and Controlled Substances Act 1981 );

S. 327M(2)(k) amended by No. 74/2014 s. 15(1).

        (k)     rape (section 38 of the Crimes Act 1958 ), rape by compelling sexual penetration (section 39 of the Crimes Act 1958 ) or armed robbery (section 75A of the Crimes Act 1958 ) if the offence is committed in circumstances where—

              (i)     torture (being the deliberate and systematic infliction over a period of time of severe pain on the victim) was involved in the commission of the offence; or

              (ii)     the offender caused really serious injury to the victim; or

              (iii)     the offender threatened to cause death or really serious injury to the victim;

        (l)     a substantially similar offence against a previous enactment or the law of a place outside Victoria corresponding to an offence referred to in this subsection.

S. 327N inserted by No. 81/2011 s. 17.