Criminal Code Act 1924
402Determination of appeals
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402 Determination of appeals
[Section 402 Amended by 25 Geo. V No. 78 ]**[Section 402 Amended by No. 83 of 1987, s. 8 ]
(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.
(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(3) Subject to the special provisions of this chapter, the Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
(4) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
(4A) [Section 402 Amended by No. 33 of 2008, s. 4, Applied:22 Oct 2008] [Section 402 Amended by No. 23 of 2013, s. 4, Applied:01 Sep 2013] The Court, on hearing an appeal against a sentence passed on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor), may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard.
(4B) [Section 402 Amended by No. 23 of 2013, s. 4, Applied:01 Sep 2013] Despite subsection (4A) , the Court, in passing another sentence under subsection (4) , must not take into account the element of double jeopardy involved in the person being sentenced again, in order to pass a less severe sentence than the Court would otherwise consider appropriate.