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inserts a new section 24AA into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Currently, an appeal by an accused against a verdict of not guilty because of the mental impairment is dealt with under sections 570A and 570B of the Crimes Act 1958. As with clause 370 discussed above, this appeal power is being moved into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 so that it is linked to the substantive processes underlying the appeal right. New section 24AA articulates the procedural and substantive requirements of such an appeal in more detail than in current legislation. It also follows, to the extent reasonably possible, the structure of the substantive appeals provisions in the Bill, particularly, clauses 274–277. New section 24AA(2) and (3) provide that a notice of application for leave to appeal must be filed within 28 days of the verdict. The Registrar of Criminal Appeals of the Supreme Court must provide the respondent with a copy of the notice of application for leave to appeal within 7 days after the filing of the notice. New section 24AA(4) requires the Court of Appeal to allow an appeal against a verdict of not guilty because of mental impairment on the same bases as for ordinary appeals against conviction. This reflects the new grounds of appeal in clause 276 discussed in detail earlier—
the verdict is unreasonable or cannot be supported on the evidence;
as a result of an error or an irregularity, there has been a substantial miscarriage of justice; or
for any other reason there has been a substantial miscarriage of justice.
However, following section 570A(4) of the Crimes Act 1958, new subsection (5) allows the Court to dismiss an appeal if the court considers that—
none of the grounds for allowing the appeal relates to the issue of the mental impairment of the accused; and
the court considers that, but for the accused's the mental impairment of the accused, the proper verdict would have been made that the accused was guilty of an offence other than the offence charged.
New subsection (7) provides that, if the Court of Appeal allows an appeal on the ground that the verdict of not guilty because of mental impairment ought not to stand, and considers that the proper verdict would have been guilty of an offence, the Court of Appeal must substitute a verdict of guilty of that offence and may make any order that the trial court could have made. Under new subsection (8), if the Court of Appeal allows the appeal, and new subsection (7) does not apply, it must set aside the verdict and either enter a judgment and verdict of acquittal or order a new trial. Finally, new subsection (9) applies if the Court of Appeal orders a new trial. It allows the Court of Appeal to make any order referred in new section 24(1)(a), (b), (c) or (e) pending the new trial.