Appeals

Question 1

give a summary of the appeal route in the MC

Answer 1

Option 1:
1. Trial in MC
2. D appeals conviction/sentence to CC
3. P or D appealed CC decision to HC by way of case stated
4. HC decision appealed to SC court

Option 2:
1. Trial in MC
2. P or D appealed CC decision to HC by way of case stated
3. HC decision (re: point of law only) appealed to SC

Question 2

give a summary of the appeal route in the CC

Answer 2

1. Trial in CC
2. D appeals to CoA (with leave of the court) or AG’s reference procedure
3. CoA decision (re: point of law only) appealed to SC

Question 3

re: appeals from MC to CC

what can D appeal against?

Answer 3

D convicted in MC (inc. youth court) can appeal as follows:
o G plea  appeal against sentence
o NG plea  appeal against conviction and/or sentence

Question 4

re: appeals from MC to CC

what is the basis of the appeal against conviction? What happens at the CC hearing?

Answer 4

• Basis of appeal against conviction  error of fact and/or law
  o Rehearing of the case in the CC. Old Ws to be called. New Ws and points of law can be relied upon.

Question 5

re: appeals from MC to CC

what is the basis of the appeal against sentence? What happens at the CC hearing?

Answer 5

• Basis of appeal against sentence  it is excessive
  o Rehearing of case in the CC and take independent view of correct sentence

Question 6

re: appeals from MC to CC

who hears the appeal?

Answer 6

• Appeal heard by recorder or circuit judge with an even number of Mags

Question 7

re: appeals from MC to CC

what is the position regarding an appeal from P?

Answer 7

• P has no right of appeal to the CC (only HC by way of case stated)

Question 8

re: appeals from MC to CC

what is the procedure?

Answer 8

• D must file and serve notice of appeal (NOA) within 15 business days of the Mags passing sentence (NB: date of sentence, not date of conviction)
  o If filed outside this time the CC can extend this time limit
• MC will send the notice to the CC and who will arrange a hearing date

Question 9

re: appeals from MC to CC

what is the deadline to file an NOA? can this be extended?

Answer 9

• D must file and serve notice of appeal (NOA) within 15 business days of the Mags passing sentence (NB: date of sentence, not date of conviction)

o If filed outside this time the CC can extend this time limit

Question 10

re: appeals from MC to CC

what is the position regarding any representation order?

Answer 10

• If D’s case was funded by an RO, the original RO will cover advice and assistance in preparing the NOA, but a new RO will need to be obtained for the appeal hearing

Question 11

re: appeals from MC to CC

what is the position regarding bail?

Answer 11

• If D is appealing a custodial sentence MC can grant bail, but there is no presumption in favour of bail. If refused, D can apply to CC for bail.

Question 12

re: appeals from MC to CC

what power does the CC have?

Answer 12

• CC has the power to confirm, reverse or vary the decision
• CC can impose any sentence the MC could have imposed (i.e. they can impose a more serious sentence, but only up to max. limits of MC)

Question 13

re: appeals from MC to CC

who can appeal CC’s decision and how?

Answer 13

• D and P can appeal the outcome to the HC by way of case stated

Question 14

re: appeals to HC by way of case stated

what are common arguments?

Answer 14

o Court misread, misunderstood or misapplied the law;
o Court heard a case it did not have jurisdiction to;
o Court made errors re admissibility or otherwise of evidence;
o Court erred in their decision following a submission of no case to answer

Question 15

re: appeals to HC by way of case stated

who can appeal to HC and on what basis?

Answer 15

P or D can appeal a MC or CC appeal decision to HC by way of case stated if:
o The decision is wrong in law; or
o The court has acted outside its jurisdiction

Question 16

re: appeals to HC by way of case stated

explain ‘wrong’

Answer 16

court reached a decision no reasonable court would have come to on the material before it.

Question 17

if D wants to appeal an MC decision, what is the best route for them?

Answer 17

whilst D can appeal to HC by way of case stated, often better to appeal to CC as quicker. Even if appeal to HC is successful, case will likely be sent back to MC for trial.

Question 18

re: appeals to HC by way of case stated

what is the procedure?

Answer 18

1. Must apply within 21 days of the date of the decision. Party will write to MC’s/CC’s clerk inc. an explanation of issue for review.
   o this time limit cannot be extended for MC decisions, but can in the CC
2. If the application to state the case is granted, the MC (or application if it is a CC decision) draft a statement of case (SOC) which is sent to P & D for comment. This inc.:
   o Decision in issue and question of law / jurisdiction for HC review
   o Summary of: proceedings history; court’s findings of relevant facts; relevant contentions if parties
   o If the issue is about whether there was sufficient evidence to reach a finding of fact, then details of the finding and summary of evidence used
3. Final version is sent to the application to lodge with the HC and give notice to the other party when this has been done

Question 19

re: appeals to HC by way of case stated

what is the deadline for the application?

Answer 19

Must apply within 21 days of the date of the decision

Question 20

re: appeals to HC by way of case stated

what information is included in the statement of case?

Answer 20

o Decision in issue and question of law / jurisdiction for HC review
o Summary of: proceedings history; court’s findings of relevant facts; relevant contentions if parties
o If the issue is about whether there was sufficient evidence to reach a finding of fact, then details of the finding and summary of evidence used

Question 21

re: appeals to HC by way of case stated

where is this case usually heard?

Answer 21

• Usually heard by Divisional Court of KBD

Question 22

re: appeals to HC by way of case stated

what will happen at this hearing?

Answer 22

• No witness evidence and confined to legal argument based on SOC

Question 23

re: appeals to HC by way of case stated

what power does the court have?

Answer 23

The court can:
- reverse;
- vary;
- affirm;
- or remit back to the lower court with a direction to acquit, convict or be reheard (often inc. direction to remedy issue i.e. HC say previous inadmissible evidence is admissible in retrial)

Question 24

re: appeals to HC by way of case stated

can this decision be appealed and how?

Answer 24

The decision can be appealed by P or D to the Supreme Court, but:
o Either the HC or SC will need to grant leave to appeal;
o The appeal can be on a point of law only; and
o The HC must certify it is a point of law of general public importance

Question 25

re: CC appeals by D what can D appeal and who to?

Answer 25

* D can appeal against sentence or conviction to the court of appeal

Question 26

re: CC appeals by D what is the first stage?

Answer 26

D will need permission to appeal

Question 27

re: CC appeals by D how does D get permission?

Answer 27

either from trial/sentencing judge by giving certificate case is fit for appeal (rare) or permission to appeal from CoA

Question 28

re: CC appeals by D explain the procedure to obtain permission from the COA

Answer 28

1. D must serve their NOA & draft grounds of appeal on the Registrar of Criminal Appeals at the CoA (R) within: * 28 days of conviction, if appealing conviction * 28 days of sentence, if appealing sentence 2. R will obtain transcript of evidence & judge’s summing up. 3. Judge will grant permission on papers. If given, they will grant public funding. 4. Hearing is before the CoA.

Question 29

re: CC appeals by D what are the time limits to serve the NOA and draft grounds on the COA

Answer 29

* 28 days of conviction, if appealing conviction * 28 days of sentence, if appealing sentence

Question 30

re: CC appeals by D when considering permission on papers, if refused, what might the court do? explain this.

Answer 30

If the appeal is completely without merit, the judge can make a direction for loss of time. This would be relevant where leave is refused and a direction for loss of time is given. If D renews the application and the CoA agrees with the single judge, any time D has spent in custody awaiting outcome of appeal will not count towards the time they must serve for their sentence.

Question 31

re: CC appeals by D if D is appealing the conviction, what will happen at the hearing?

Answer 31

CoA will oral and new evidence which is credible; would’ve been admissible at D’s trial and if there is a reasonable excuse for the failure to adduce the evidence at trial

Question 32

re: CC appeals by D if D is appealing the sentence, what will happen at the hearing?

Answer 32

appealed confined to legal submissions on appropriate sentence

Question 33

re: CC appeals by D what power does the court have in relation to conviction and sentence cases?

Answer 33

* Full court also has the power to give a loss of time direction if it determines the appeal is without merit and frivolous/vexatious

Question 34

re: CC appeals by D - conviction when is an appeal allowed?

Answer 34

* Appeal is allowed where the conviction is ‘unsafe’.

Question 35

re: CC appeals by D - conviction what are the possible outcomes if the appeal is 'unsafe'?

Answer 35

o Quash conviction o Allow part of the appeal and dismiss others o Substitute guilty verdict for another offence o Order a retrial

Question 36

re: CC appeals by D - conviction when will a re-trial be ordered and what factors are considered?

Answer 36

if it is in the interests of justice. Factors considered: - time that has elapsed, - if new evidence means D would now be acquitted

Question 37

re: CC appeals by D - conviction when must an appeal be dismissed? explain this.

Answer 37

The court must dismiss the appeal unless the conviction is unsafe i.e. a conviction can be upheld even if there was a mistake/error so long as there would be the same conviction if the mistake/error didn’t happen e.g. judge misdirected jury about inferences. CoA held this didn’t render the conviction unsafe as there was other compelling evidence against them Possible rare situation where the court is satisfied D did commit the offence, but the conviction must be quashed as it is unsafe i.e. abuse of process such as bugging a privileged conversation between D and lawyer

Question 38

re: CC appeals by D - conviction what are common arguments the conviction is unsafe?

Answer 38

o Judge failed to correctly direct jury (i.e. BOP, SOP, jury’s role (not judge’s) to determine facts, jury should try to return unanimous verdict, jury’s power to convict of a lesser offence of which there is evidence) o Judge wrongfully admitted or excluded evidence o Judge failed to administer correct warnings to the jury (i.e. Turnbull warning, direction about inferences or relevance of pre-cons) o Inappropriate interventions by the trial judge o A failure by the trail judge when summing up the case o Fresh evidence i.e. new evidence has come to light. This doesn’t render the conviction unsafe but the CoA will need to consider whether the outcome would have been different if it had the evidence been before the jury

Question 39

re: CC appeals by D - sentence when will an appeal be successful?

Answer 39

* Appeal will be successful where the sentence is wrong or excessive,

Question 40

re: CC appeals by D - sentence give an example of a sentence being wrong in law

Answer 40

o Wrong in law i.e. judge didn’t have power to pass it;

Question 41

re: CC appeals by D - sentence give an example of a sentence being wrong in principle

Answer 41

i.e. not commensurate with the seriousness of offence

Question 42

re: CC appeals by D - sentence give an example of a sentence being wrong in principle

Question 43

re: CC appeals by D - sentence give an example where the judge adopted the wrong approach to sentencing

Answer 43

i.e. increased for NG plea, failed to discount for G plea, should have held a NG, failed to give appropriate weight to mitigation

Question 44

re: CC appeals by D - sentence give an example of a sentence is manifestly excessive

Answer 44

above upper limit of sentencing range

Question 45

re: CC appeals by D - sentence when might a sentence be wrong or excessive?

Answer 45

o Wrong in law o Wrong in principle o The judge adopted the wrong approach to sentencing o Disparity of sentence between D and co-D o Sentence manifestly excessive

Question 46

re: CC appeals by D - sentence what can the judge do?

Answer 46

* The judge can confirm, quash or replace the sentence NB: any new sentence/order cannot be higher than the original imposed by the CC

Question 47

re: CC appeals by D - sentence how is the judge's sentencing power limited?

Answer 47

NB: any new sentence/order cannot be higher than the original imposed by the CC

Question 48

re: CC appeals by P what appeals can P make?

Answer 48

Appeal of Termination and Evidential Rulings Appeal by Attorney-General (AG) Applications for Retrial

Question 49

re: CC appeals by P explain Appeal of Termination and Evidential Rulings

Answer 49

P has a right of appeal to CoA in respect of rulings made by the judge before or during a trial (but before summing up) which: o Effectively terminate the trial (‘termination rulings’); or o Significantly weaken P’s case (‘evidential rulings’)

Question 50

re: CC appeals by P when might an Appeal of Termination and Evidential Rulings be made?

Answer 50

* i.e. a ruling of no case to answer was made

Question 51

re: CC appeals by P when must P lodge an Appeal of Termination and Evidential Ruling?

Answer 51

* P must inform the court immediately after the ruling if it intends to appeal

Question 52

re: CC appeals by P explain Appeal by Attorney-General (AG)

Answer 52

* AG can appeal cases to the CoA where the CC’s sentence is ‘unduly lenient’ * AG can also refer points of law for clarification to the CoA, but this does not affect acquittal o CoA must give permission

Question 53

re: CC appeals by P - Appeal by Attorney-General (AG) what does this apply to?

Answer 53

o Only applicable to indictable-only and specified either-way offences

Question 54

re: CC appeals by P - Appeal by Attorney-General (AG) what is the effect if successful?

Answer 54

o If successful, CoA will quash sentence and pass appropriate sentence (must be a sentence the CC would have passed)

Question 55

re: CC appeals by P when can P apply for a retrial?

Answer 55

* P can apply to CoA for a retrial of a D who has been acquitted of: o Murder; attempted murder; manslaughter; kidnap; sexual offences; various class A drug offences; arson endangering life or property

Question 56

re: CC appeals by P - re-trial what must P satisfy?

Answer 56

The CoA will only quash the conviction and order a re-trail where P satisfies: 1. Evidential test 2. Interest of justice test

Question 57

re: CC appeals by P - re-trial explain the evidential test

Answer 57

new and compelling evidence of D’s guilt

Question 58

re: CC appeals by P - re-trial explain the interest of justice test

Answer 58

have (but not exclusive) regard to: o Whether existing circumstances make a fair trial unlikely; o Length of time since alleged offence; o If the new evidence could have been adduced at the earlier proceedings but for the failure of the police to act with due diligence o Whether the police/P have failed to act with due diligence or expedition

Question 59

explain an appeal from CoA/HC to the SC?

Answer 59

* P or D can appeal points of law to the SC * CoA/HC must certify it is a point of law of public important * Permission of CoA/HC or SC must grant leave to appeal

Question 60

Explain judicial review

Answer 60

Uncommon, but P or D can apply for JR where the MC or CC has: o Acted ultra vires (i.e. made an order it had no power to make); or o Breached the rules of natural justice (i.e. contravening a right to a fair trail or appearing biased) Asking court to either quash decision or compel court to act