27: Appeals from the Mags and from CC Flashcards
VARIATION OF SENTENCE
S142 MCA – applies where D is
Convicted
s142 MCA - A Mags can vary/rescind its decision as to sentence if
in interests of justice. Applies regardless pleaded/found guilty.
S142 MCA VARIATION OF SENTENCE
But CANNOT operate where
D is acquitted, e.g. to revoke D’s costs order.
Use: when there was a MISTAKE.
SET ASIDE CONVICTION FOR REHEARING
A convicted D in Mags can ask Mags to set aside conviction.
WHO MANY CONSIDER THIS?
This app MAY be considered by same/different bench. If set aside, case reheard by diff Mags
appeals from megs and from CC
SET ASIDE CONVICTION FOR REHEARING
Setting aside may be appropriate when:
- Mags made error of law;
- Some defect in procedure
Routes of appeal:
- Appeal to CC
- Appeal to HC by way of case stated;
- Application to HC for judicial review
- S142 MCA
. If D pleaded guilty, he may appeal only against
sentence, unless plea was equivocal.
Appeal by way of case stated/ app for judicial review is heard by
Divisional Court of the QBD of HC.
APPEALS AGAINST CONVICTION/SENTENCE
Adults: judge sits with
+ HOW MANY
lay mags (usually 2, max four)
APPEALS AGAINST CONVICTION/SENTENCE
An appeal from YC MUST be heard by
judge or recorder of CC with 2 lay justices (1 man, 1 woman).
What is the exception to appeals against cpnviction/sentence in the Youth Court???
EXCEPTIONALLY: MAY include 1 justice if judge thinks appeal would be UNREASONABLY DELAYED
PROCEDURE ON APPEAL TO CC
- Appeal notice given in writing to Mags court officer + pros not more than 21 days after sentence.
- Appeal notice MUST summarise issues, pros witnesses, say how long summary trial lasted + appeal will last. If D asked Mags to reconsider case under s142, they should state this. Mags under no duty to provide D with notice of evidence from summary trial, but any def request should be viewed sympathetically.
- Not necessary to provide CC with reasons by Mags of decision on appeal against conviction. Mags must forward to CC copies of any report received by Mags for sentencing.
- All docs are forwarded to CC + send notice of time + place to D, pros + Mags
- D may appeal out of time with leave in writing from CC. Otherwise leave not required.
PROCEDURE ON APPEAL TO CC
How long after sentence must pros give appeal notice to Mags?
NOT MORE THAN 21 days after sentence
PROCEDURE ON APPEAL TO
Appeal notice MUST :
- summarise issues,
- pros witnesses,
- say how long summary trial lasted + appeal will last.
- If D asked Mags to reconsider case under s142, they should state this.
Mags under no duty to provide D with notice of evidence from summary trial, but any def request should be viewed sympathetically.
When appealing to CC, must the CC have the reasons of thee Mags decision on appeal against conviction?
NO
- Mags must forward to CC copies of any report received by Mags for sentencing.
When must there be a notice of appeal to CC?
Notice of appeal in writing to Mags court officer and every party within 21 days of sentence being passed/deferred. It is Sentence NOT conviction date. Time-limit is 21 days where appeal is against order/failure to make order.
This is NOT the same in appeal against conviction from CC to CA.
The APPEAL notice should state:
- Whether appeal is against conviction/sentence or order/failure to make order
- Must summarise issues
- In appeal against conviction, specify witnesses whom D will want to question; and
- State how long trial in mags lasted
- How long the appeal is likely to take
- MUST mention if appellant asked Mags to reconsider case
What form must the appeal notice be in?
written or oral
Must there be leave to appeal?
. If notice is within time, no leave to appeal Is required.
What must be served with appeal notice if the application is late?
An app for extension of time MUST be served with appeal notice and MUST explain why appeal is late. CC MAY shorten/extend time even after time-limit expired.
Where D wishes to introduce
evidence relating to bad character or previous sexual history, or hearsay;
notice o app must be made not more than X days after service of appeal notice
14 days
Appeal = heard by
circuit judge or recorder who must norm sit with 2 lay mags not involved in original proceedings.
There MUST have been a final determination.
APPEAL HEARING (CC)
Appeal against Conviction – Judge sits with
lay mags (2 norm, max 4)
APPEAL HEARING (CC)
Appeal against Conviction –
What type of hearing is it?
Appeal = complete rehearing, NOT review of Mags, party can call evidence not called in Mags. Decision on appeal is majority decision, if evenly no. judge has final vote. Where decision, he MUST give reasons, refusal may = breach natural justice. D entitled to know basis that pros case is accepted. Reasons should be given, whether CC accepts/rejects appeal, failure = not necessarily invalidate decision of CC.
APPEAL HEARING
Appeal against Sentence
What happens?
Fresh sentencing hearing. Pros open + say antecedents + def mitigates. CC shouldn’t ask if sentence was within discretion of Mags (unlike in judicial review), but if sentence passed by Mags was correct. CC cannot increase sentence on appeal from Mags on basis they ought to have committed D to CC for sentence. The CC can however increase sentence to max that could be imposed by Mags.
ABANDONMENT OF APPEAL = D may abandon appeal by giving notice in writing to:
- Mags
- Appropriate officer of CC; and
- Pros + other party to appeal
ABANDONMENT OF APPEAL
Must permission be required?
Appeal may be abandoned without permission if done before hearing commences.
Once hearing started – appeal may only be abandoned with permission of CC
ABANDONMENT OF APPEAL
What form must be the notice of abandonment?
Notice of abandonment can be written or oral. CC has discretion to award costs in appeal, even if timely notice of abandonment.
Can appeal be abandoned by D failing to attend/instruct?
no
What happens upon abandonment of appeal?
Upon abandonment, CC has no power to increase sentence. When appeal = abandoned, CC no power to reinstate appeal unless abandonment was nullity.
POWERS OF CC ON APPEAL = S48 powers of CC. Decision of CC may be by
majority = lay justices can out-vote the judge. Lay justices can out-vote the judge. Lay justices MUST accept question of law by judge.
POWERS OF CC ON APPEAL
Following appeal from Mags, CC MUST:
- Confirm, reverse, or vary any part of the decision. If D appeals only a part of Mags decision, CC not restricted to reviewing just the part, but the whole decision
- Remit case to Mags (e.g. equivocal plea)
- Make order it thinks just
- Inc increasing sentence up to max sentence available to Mags. This prevents frivolous appeals.
- Where appeal = unsuccessful, court may order D pay costs.
If appeal is against conviction or sentence, the CC can punish D.
What is an
APPEAL BY WAY OF CASE STATED?
Appeal from Mags to the Divisional Court of QBD of HC.
Essence: appeal on point of law identified in a doc know as “case”. The ‘case’ is drafted by justices’ clerk.
Who gets the remedy of appeal by way of case stated?
- The remedy is available to both pros + def
APPEAL BY WAY OF CASE STATED
What does the remedy operate to?
- Remedy operates only to:
- An error of law or
- Decision taken in excess of jurisdiction.
Can a question of fact give rise to an appeal by way of case stated?
A question of fact CAN give rise to an appeal by way of case stated if the finding of fact is such that no reasonable bench could have properly reached that factual conclusion.
Where D thinks that justices shouldn’t have arrived at a find has remedy in an appeal to the CC not the HC.
APPEAL BY WAY OF CASE STATED
When is the remedy available?
only after first determination of proceedings in the Mags’ court.
APPEAL BY WAY OF CASE STATED
What if the trial is adjourned?
procedure CANNOT be employed during period of adjournment. D can use this if he thinks the sentence is “harsh and oppressive”.
DETERMINATION OF CASE STATED
Divisional court hears app by way of case stated which comprises at least
how many judges?
2 judges
DETERMINATION OF CASE STATED
If 2 judges cant agree, what happens?
appeal unsuccessful.
What happens at a hearring of case stated?
- No evidence is called at hearing. Appeal conduct with SUBMISSIONS.
If facts within case -) rise point of law not argued before Mags but would have provided D with defence, court MAY consider point provided no further evidence necessary.
DETERMINATION OF CASE STATED
Remedy:
Court may: reverse, affirm, amend or remit Mags’ decision or make another order.
DETERMINATION OF CASE STATED
How may an appellant abandon an appeal?
An appellant may abandon an appeal by way of case stated without leave.
The Divisional Court can order retrial before same/different bench were fair trial.
JUDICIAL REVIEW
What cases are susceptible to review:
- Mags; and
- CC (those not concerned with matters relating to trial on indictment).
Remedies for Judicial review:
HC does this by: prerogative orders, e.g. quashing, mandatory and prohibitory orders. Judicial review app = Divisional Court QBD in HC.
Grounds for judicial review:
- Error of law;
- Excess of jurisdiction;
- Breach of natural justice
Breach of natural justice =
- Failing to give D adequate time to prepare defence
- Failing to grant adjournment to allow attendance of witness
- Pros failing to call/disclose statement of witness who might assist def
- Pros failing to disclose previous convic of pro witness
- Making a costs order without inquiring into his means.
DECISION BETWEEN JUDICIAL REVIEW + CASE STATED
Which one sets aside lower court’s decision?
BOTH
DECISION BETWEEN JUDICIAL REVIEW + CASE STATED
wHICH ONE:
Norm appeal where error of law =
way of case stated
When is it Wrong to seek judicial review where case stated is appropriate?
- where case stated is appropriate to order more stringent time-limit
DECISION BETWEEN JUDICIAL REVIEW + CASE STATED
- Judicial review = more appropriate where:
- there is an issue of fact to be raised + decided where justices didn’t decide
- where alleged there has been unfairness or bias in conduct of justices.
DECISION BETWEEN JUDICIAL REVIEW + CASE STATED
Case stated more appropriate where:
alleged misdirection or error law.
DECISION BETWEEN JUDICIAL REVIEW + CASE STATED
Judicial review = ONLY REMEDY where X
because case stated procedure only available where there is X
def wish to challenge commital for sentence, as case stated procedure is only available where there is a final determination of case.
APPEAL BY WAY OF CASE STATED: Appellant MUST show: Mags decision:
- Error in law; or
- Question of jurisdiction
APPEAL BY WAY OF CASE STATED:
Mags have NO power to state a case until
Mags have NO power to state a case until reached a FINAL determination of the matter. They have NO power to state a case DURING the hearing.
Why is appeal by way of case stated not appropriate method of challenging a committal for sentence?
because sentence hasn’t been determined yet.
Who canAny party can apply, inc TP whose legal rights are affected. apply for appeal by way of case stated?
APPEAL BY WAY OF CASE STATED
What happens if the appeal is based on facts of case?
it will generally be refused. EXCEPTION:
- Where Mags made finding of fact is totally unsupported by evidence or
- no reasonable tribunal, properly directed, could have reached.
here HC MAY treat = error of law.
When it is an appeal by way of case stated, the appellant cannot:
seek to raise new matters of fact/law in appeal by way of case stated.
Once app to state a case to HC is made, what is lost?
Once app to state a case to HC is made, D’s right to appeal to CC is lost. NO new evidence is adduced.
Appeal from Divisional Court – Any appeal from HC either of case stated or judicial review is to
the SC.
Appeals to HC by way of case stated- MUST be in writing no more than
21 days after decision sought to be appealed and MUST be served on each party + court officer.
Appeals to HC by way of case stated-
Can the time limit be extended?
21 day CANNOT be extended.
Appeals to HC by way of case stated-
App MUST:
- specify decision in issue
- proposed questions of law or jurisdiction; AND
- indicate proposed grounds of appeal; and
- include app for bail pending appeal
Appeals to HC by way of case stated-
Party wishing to make representations MUST
serve on court officer and parties within 14 days service of app.
Appeals to HC by way of case stated-
Must there be a hearing?
Court MAY determine app without hearing. If court refuses to state a case, it MUST serve notice of each party.
Appeals to HC by way of case stated-
If Applicant ask for written reasons, it MUST be served no more than
Case stated from CC = Can appeal by way of case stated to HC from CC on
any matter NOT RELATED to trial on indictment (including appeal to CC against conviction, committal to CC for sentence).
APPS FOR JUDICIAL REVIEW =
Poss to challenge decision of CC by judicial review provided decision
DOESN’T concern matter relating to trial on indictment.
APPS FOR JUDICIAL REVIEW =
Matters not relating to trial on indictment include:
- forfeiture of surety
- forfeiture of property used in course of offence belonging to TP
- Binding over an acquitted accused; and
- Restrictions on publication of identify of convicted youth
Bail MAY be granted pending judicial review.
If convicted D appeals to CC, any further appeals to HC on point of law should be by case stated, NOT judicial review.
DIFFERENCE CASE STATED FROM MAGS AND CC
- Appellant initially drafts statement.
- Initial 21 day limit for seeking a case from Mags is fixed by 21 day limit, time limit for initiating a case stated in the CC MAY be extended before or after it has expired.
