327MDetermination of application where fresh and compelling evidence

327M Determination of application where fresh and compelling evidence (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 (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.