Tasmanian Numbered Acts

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MAGISTRATES COURT (CRIMINAL AND GENERAL DIVISION) ACT 2019 (NO. 43 OF 2019) - SECT 145

Determining application for review
(1)  In this section –
originating Court means the Court;
relevant order , in relation to an application for review, means the order which is the subject of the application;
sentencing order means a relevant order which imposes a sentence on an offender.
(2)  At the hearing of an application for review, the Supreme Court, after considering the evidence and materials adduced and brought before the originating Court and such further evidence as the Supreme Court considers appropriate, is to –
(a) review the relevant order in so far as the order relates to the grounds specified in the application; and
(b) determine the application.
(3)  In reviewing a relevant order and determining an application for review, the Supreme Court may do one or more of the following:
(a) dismiss the application;
(b) if the Supreme Court considers that no substantial miscarriage of justice has occurred even though the matter raised by the applicant might be decided in favour of the applicant, dismiss the application;
(c) confirm, vary, amend, rescind, set aside or quash the relevant order;
(d) remit the matter to the originating Court, with or without a direction in law;
(e) order that the matter be re-tried by the originating Court;
(f) prohibit the originating Court, or any other person, court or tribunal, from proceeding or further proceeding in respect of the relevant order;
(g) amend, or cause to be amended, on such terms as are just, a defect or error in any proceedings before the originating Court;
(h) make any order, and cause any proceeding to be taken, as the Supreme Court considers necessary to secure a final determination of the application on the merits of the case;
(i) exercise any power which the Supreme Court might exercise upon habeas corpus or an order of review under the Judicial Review Act 2000 ;
(j) exercise any power that might have been exercised by the originating Court.
(4)  In reviewing a sentencing order and determining an application for review (whether the application is made by the prosecutor or the offender), the Supreme Court, in exercising a power in relation to sentencing, may take into account any matter relevant to sentencing that has occurred between the time when the sentencing order was made and when the Supreme Court hears and determines the application for review.
(5)  Despite subsection (4) , if the Supreme Court, in reviewing a sentencing order and determining an application for review, imposes a different sentence on the offender, the Supreme Court, in doing so, must not take into account any element of double jeopardy so as to impose a less severe sentence than it would otherwise consider appropriate.
(6)  If the Supreme Court, in reviewing a relevant order and determining an application for review, quashes the relevant order in relation to a matter and remits the matter to the originating Court, either with or without any direction in law –
(a) the originating Court must hear and determine the matter in accordance with the law and any such direction in law; and
(b) the originating Court, in sentencing the offender in relation to the matter, may take into account any matter relevant to sentencing that has occurred between the time when the Supreme Court quashed the relevant order and when the originating Court determines the remitted matter; and
(c) despite paragraph (b) , the originating Court in sentencing the offender again for the relevant offence must not take into account any element of double jeopardy so as to impose a less severe sentence than it would otherwise consider appropriate.
(7)  Before determining an application for review, the Supreme Court, if it considers that the reasons given for making the relevant order are insufficient, may remit the matter to the originating Court with a direction to provide the Supreme Court with further and better reasons within the time specified by the Supreme Court.
(8)  If the Supreme Court has required further and better reasons under subsection (7) , the Supreme Court is to provide those reasons to the parties to the application for review as soon as practicable after receiving them and, in any event, before determining the application.
(9)  Before determining an application for review, the Supreme Court must make, or cause to be made, all amendments referred to in subsection (3)(g) as are necessary for the purpose of determining the application.



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