Document ID: chunk:federal_register_of_legislation:C2022C00068:clause:2_4:p2
Version: federal_register_of_legislation:C2022C00068
Segment Type: clause
Provision Reference: sch 2 cl 4 (pt 2/4)
Character Range: 42041–44830

(11) Subsection (10) does not prevent an alternative verdict under section 474.17B.
 (12) A person who has been convicted or acquitted of an offence (the underlying offence) against subsection 474.17(1) may not be convicted of an offence against subsection (1) or (4) of this section in relation to the conduct that constituted the underlying offence.

When conviction must be set aside
 (13) If:
 (a) a person has been convicted by a court of an offence against subsection (4) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015; and
 (b) one or more of those civil penalty orders are set aside or reversed on appeal; and
 (c) if the civil penalty orders covered by paragraph (b) had never been made, the person could not have been convicted of the offence; and
 (d) the person applies to the court for the conviction to be set aside;
the court must set aside the conviction.
 (14) If:
 (a) a person has been convicted by a court of an offence (the aggravated offence) against subsection (4); and
 (b) the court sets aside the conviction under subsection (13);
the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.

474.17B  Alternative verdict if aggravated offence not proven
 (1) If, on a trial for an offence (the aggravated offence) against subsection 474.17A(1), the trier of fact:
 (a) is not satisfied that the defendant is guilty of the aggravated offence; but
 (b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 474.17(1);
it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
 (2) If, on a trial for an offence (the aggravated offence) against subsection 474.17A(4), the trier of fact:
 (a) is not satisfied that the defendant is guilty of the aggravated offence; but
 (b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 474.17(1) or subsection 474.17A(1);
it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1) or subsection 474.17A(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Endnotes

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