s 394J Requirements for exercise of power of review under this Division
394J.—(1) This section —(a) sets out the requirements that must be satisfied by an applicant in a review application before an appellate court will exercise its power of review under this Division; and (b) does not affect the inherent power of an appellate court to review, on its own motion, an earlier decision of the appellate court.[19/2018] (2) The applicant in a review application must satisfy the appellate court that there is sufficient material (being evidence or legal arguments) on which the appellate court may conclude that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made.[19/2018] (3) For the purposes of subsection (2), in order for any material to be “sufficient”, that material must satisfy all of the following requirements:(a) before the filing of the application for permission to make the review application, the material has not been canvassed at any stage of the proceedings in the criminal matter in respect of which the earlier decision was made;[Act 25 of 2021 wef 01/04/2022] (b) even with reasonable diligence, the material could not have been adduced in court earlier; (c) the material is compelling, in that the material is reliable, substantial, powerfully probative, and capable of showing almost conclusively that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made.[19/2018] (4) For the purposes of subsection (2), in order for any material consisting of legal arguments to be “sufficient”, that material must, in addition to satisfying all of the requirements in subsection (3), be based on a change in the law that arose from any decision made by a court after the conclusion of all proceedings relating to the criminal matter in respect of which the earlier decision was made.[19/2018] (5) For the purposes of subsection (2), the appellate court may conclude that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made, only if —(a) the earlier decision (being a decision on conviction or sentence) is demonstrably wrong; or (b) the earlier decision is tainted by fraud or a breach of the rules of natural justice, such that the integrity of the judicial process is compromised.[19/2018] (6) For the purposes of subsection (5)(a), in order for an earlier decision on conviction to be “demonstrably wrong” —(a) it is not sufficient that there is a real possibility that the earlier decision is wrong; and (b) it must be apparent, based only on the evidence tendered in support of the review application and without any further inquiry, that there is a powerful probability that the earlier decision is wrong.[19/2018] (7) For the purposes of subsection (5)(a), in order for an earlier decision on sentence to be “demonstrably wrong”, it must be shown that the decision was based on a fundamental misapprehension of the law or the facts, thereby resulting in a decision that is blatantly wrong on the face of the record.[19/2018] —(1) This section —(a) sets out the requirements that must be satisfied by an applicant in a review application before an appellate court will exercise its power of review under this Division; and (b) does not affect the inherent power of an appellate court to review, on its own motion, an earlier decision of the appellate court.[19/2018] (2) The applicant in a review application must satisfy the appellate court that there is sufficient material (being evidence or legal arguments) on which the appellate court may conclude that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made.[19/2018] (3) For the purposes of subsection (2), in order for any material to be “sufficient”, that material must satisfy all of the following requirements:(a) before the filing of the application for permission to make the review application, the material has not been canvassed at any stage of the proceedings in the criminal matter in respect of which the earlier decision was made;[Act 25 of 2021 wef 01/04/2022] (b) even with reasonable diligence, the material could not have been adduced in court earlier; (c) the material is compelling, in that the material is reliable, substantial, powerfully probative, and capable of showing almost conclusively that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made.[19/2018] (4) For the purposes of subsection (2), in order for any material consisting of legal arguments to be “sufficient”, that material must, in addition to satisfying all of the requirements in subsection (3), be based on a change in the law that arose from any decision made by a court after the conclusion of all proceedings relating to the criminal matter in respect of which the earlier decision was made.[19/2018] (5) For the purposes of subsection (2), the appellate court may conclude that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made, only if —(a) the earlier decision (being a decision on conviction or sentence) is demonstrably wrong; or (b) the earlier decision is tainted by fraud or a breach of the rules of natural justice, such that the integrity of the judicial process is compromised.[19/2018] (6) For the purposes of subsection (5)(a), in order for an earlier decision on conviction to be “demonstrably wrong” —(a) it is not sufficient that there is a real possibility that the earlier decision is wrong; and (b) it must be apparent, based only on the evidence tendered in support of the review application and without any further inquiry, that there is a powerful probability that the earlier decision is wrong.[19/2018] (7) For the purposes of subsection (5)(a), in order for an earlier decision on sentence to be “demonstrably wrong”, it must be shown that the decision was based on a fundamental misapprehension of the law or the facts, thereby resulting in a decision that is blatantly wrong on the face of the record.[19/2018]