68ZRestrictions on publication

68Z Restrictions on publication (1) A person must not publish any matter that identifies or is capable of identifying an acquitted person— (a) who is being retried for an offence as a result of an order under section 68M (Court may order retrial—category A offence) or section 68N (Court may order retrial—category B offence); or (b) who is being tried for an administration of justice offence as a result of an order under section 68O (Court may order trial— administration of justice offence); or (c) who is the subject of— (i) a police investigation, or an application for a police investigation, under the Crimes Act 1900, section 252L (Authorisation of police investigations—acquitted person); or Note Procedure for a police investigation of an offence suspected to have been committed by a person acquitted of the offence are set out under the Crimes Act 1900, s 252L. Miscellaneous Division 8AA.6 (ii) an application for a retrial, or trial for an administration of justice offence, or an order for retrial, or trial for an administration of justice offence, under this part. (2) However, subsection (1) does not apply if the publication is authorised by order of— (a) the court; or (b) a court before which the acquitted person is being retried, or tried for the administration of justice offence. (3) The relevant court may at any time vary or revoke an order under this section. (4) The prohibition on publication under this section ceases to have effect, subject to any order under this section, when whichever of the following happens first: (a) there is no longer any step that could be taken which would lead to the acquitted person being retried, or tried for the administration of justice offence, under this part; (b) if the acquitted person is retried, or tried for an administration of justice offence, under this part—the trial ends. (5) Nothing in this section affects any prohibition of the publication of any matter under any other law in force in the Territory. (6) A contravention of this section is punishable as contempt of the Supreme Court. 68ZA Maximum penalty for retrial offence (1) This section applies if an acquitted person is— (a) retried for a category A offence or a category B offence as a result of an order under division 8AA.3; and (b) found guilty of the offence. (2) When imposing a sentence on the person for the offence, the court must not exceed the maximum penalty for the offence that applied at the time the person is alleged to have engaged in conduct that constituted the offence for which the person was acquitted and that was the subject of the application for the order. 68ZB Indemnification for costs (1) This section applies if— (a) an application is made to the court by the director of public prosecutions for an order under division 8AA.3 in relation to— (i) the retrial of an acquitted person under section 68M (Court may order retrial—category A offence); or (ii) the retrial of an acquitted person under section 68N (Court may order retrial—category B offence); or (iii) the trial of an acquitted person for an administration of justice offence under section 68O (Court may order trial— administration of justice offence); and (b) the acquitted person (the applicant) applies to the court for indemnification of the applicant’s costs incurred as a result of— (i) an application for an order mentioned in paragraph (a); or (ii) if the order is granted—a proceeding resulting from the (2) The court may make an order, subject to any conditions the court thinks appropriate, that the applicant is entitled to be indemnified for the costs mentioned in subsection (1) (b) (an indemnification order) if the court is satisfied that the order is in the interests of justice. (3) When deciding whether it is in the interests of justice to make an indemnification order the court may take into account the following: (a) whether the court makes an order mentioned in subsection (1) (a); Miscellaneous Division 8AA.6 (b) whether the applicant’s acquittal, that is the subject of the application for an order mentioned in subsection (1) (a), was attributable to the act, neglect or fault of the applicant; (c) any other matter that the court considers relevant. (4) If the court makes an indemnification order in the applicant’s favour the applicant must be indemnified by the Territory, in relation to the costs mentioned in the order, for an amount assessed as reasonably incurred. Note If a form is approved under the Court Procedures Act 2004, s 8 for an application, the form must be used. Part 8AB Appeals against conviction for fresh and compelling evidence Part 8AB Appeals against conviction for fresh and compelling evidence 68ZC Application—pt 8AB (1) This part applies in relation to a person who is convicted or found guilty of an offence in the Supreme Court or the Magistrates Court (the convicted person). convicted or found guilty, of an offence, includes a conviction or finding of guilt entered before the commencement of this part. Division 8AB.2 Important concepts 68ZD Definitions—pt 8AB compelling, evidence—see section 68ZE (3). convicted person––see section 68ZC (1). court means the Court of Appeal. fresh, evidence—see section 68ZE (1). 68ZE Meaning of fresh and compelling evidence—pt 8AB (1) For this part, evidence in relation to an offence is fresh if the evidence— (a) has not been tendered in the proceeding in which the convicted person was convicted or found guilty of the offence, or any appeal against the conviction or finding of guilt; and Appeals against conviction for fresh and compelling evidence Part 8AB Application of pt 2A Division 8AB.3 (b) could not, in the course of an exercise of reasonable diligence, have been tendered in a proceeding mentioned in paragraph (a). (2) To avoid any doubt, subsection (1) does not prevent evidence from being fresh only because the evidence was, or would have been considered to be, inadmissible in the proceeding in which the convicted person was convicted or found guilty of the offence. (3) For this part, evidence in relation to an offence is compelling if the evidence is— (a) reliable; and (b) substantial; and (c) highly probative in the context of the issues in dispute in the proceeding in which the person was convicted or found guilty. Division 8AB.3 Application of pt 2A 68ZF Certain provisions of pt 2A taken to apply The following provisions of part 2A (Court of Appeal) are taken to apply to this part: • section 37E (Appellate jurisdiction) • section 37H (Appeal bench) • section 37I (Presiding judge) • section 37J (Appeal court constituted by a single judge) • section 37K (Decision-making) • section 37L (Appeal judge unable to continue sitting) • section 37M (Reserved judgments) • section 37N (Evidence on appeal) • section 37P (New trials) • section 37Q (Bail time on appeal does not count towards sentence). Part 8AB Appeals against conviction for fresh and compelling evidence 68ZG Court may grant leave to appeal conviction (1) The court may, on application by a convicted person, grant leave for the convicted person to bring an appeal against their conviction or finding of guilt if satisfied that— (a) there is fresh and compelling evidence in relation to the offence that should be considered on an appeal; and (2) To remove any doubt, the court may grant leave under this section if a convicted person has previously made an application or been granted leave under this section. 68ZH Orders on appeal against conviction (1) This section applies if the court grants leave under section 68ZG. (2) The court, on an appeal against a conviction or finding of guilt, may— (a) allow the appeal if it considers that— (i) there is fresh and compelling evidence; and (ii) after taking into account the fresh and compelling evidence, there has been a substantial miscarriage of justice; or (b) dismiss the appeal. (3) If the court allows the appeal, the court must— (a) set aside the conviction or finding of guilt; and (b) either order— (i) a verdict of not guilty to be entered; or (ii) a new trial or hearing.