23Quashing of conviction etc.

#### 23 Quashing of conviction etc. (1) Subject to subsection (5), where in an appeal it appears to the Tribunal: (a) that the conviction or the prescribed acquittal is unreasonable, or cannot be supported, having regard to the evidence; (b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or the prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred; (c) that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred; or (d) that, in all the circumstances of the case, the conviction or the prescribed acquittal is unsafe or unsatisfactory; it shall allow the appeal and quash the conviction or the prescribed acquittal. (2) Subject to subsection (5), where in an appeal it appears to the Tribunal that there is evidence that: (a) was not reasonably available during the proceedings before the court martial or the Defence Force magistrate; (b) is likely to be credible; and (c) would have been admissible in the proceedings before the court martial or the Defence Force magistrate; it shall receive and consider that evidence and, if it appears to the Tribunal that the conviction or the prescribed acquittal cannot be supported having regard to that evidence, it shall allow the appeal and quash the conviction or the prescribed acquittal. (3) Subject to subsection (5), where in an appeal against a conviction it appears to the Tribunal that, at the time of the act or omission the subject of the charge, the appellant was suffering from such unsoundness of mind as not to be responsible, in accordance with law, for that act or omission, the Tribunal shall: (a) allow the appeal and quash the conviction; (b) substitute for the conviction so quashed an acquittal on the ground of unsoundness of mind; and (c) direct that the person be kept in strict custody until the pleasure of the Governor‑General is known. (4) Where in an appeal it appears to the Tribunal that the court martial or the Defence Force magistrate should have found that the appellant, by reason of unsoundness of mind, was not able to understand the proceedings against him or her and accordingly was unfit to stand trial, the Tribunal shall allow the appeal, quash the conviction or prescribed acquittal and direct that the appellant be kept in strict custody until the pleasure of the Governor‑General is known. (5) The Tribunal shall not quash a conviction under subsection (3) or (4) if there are grounds for quashing the conviction under subsection (1) or (2). (6) Section 194 of the Defence Force Discipline Act 1982 applies to a direction under subsection (3) or (4) of this section as if that direction were a direction to which that section applied.