Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW)

An Act to amend the Crimes (Appeal and Review) Act 2001 to make further provision in relation to the principle of double jeopardy in criminal proceedings.

1Name of Act

This Act is the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009.

2Commencement

This Act commences on the date of assent to this Act.

Schedule 1Amendment of Crimes (Appeal and Review) Act 2001 No 120[1]Section 68A

Insert after section 68:

68ADouble jeopardy not to be taken into account in prosecution appeals against sentence(1)

An appeal court must not:

• (a)

  dismiss a prosecution appeal against sentence, or

• (b)

  impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

because of any element of double jeopardy involved in the respondent being sentenced again.

(2)

This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal.

[2]Section 105 Application for retrial—procedure

Omit section 105 (1). Insert instead:

(1)

Not more than one application for the retrial of an acquitted person may be made under this Division in relation to an acquittal.

(1A)

An application may be made for a further retrial of a person acquitted in a retrial under this Part but only if it is made on the basis that the acquittal at the retrial was tainted.

[3]Schedule 1 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009

[4]Schedule 1, Part 8

Insert after clause 15:

Part 8Provision consequent on enactment of Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 200916Application of amendment

Section 68A, as inserted by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009, extends to an appeal that was commenced but not finally determined before the insertion of the section.