28: Appeals Flashcards
How to appeal a judgment?
- leave of CA (28dys conviction) or
- judge grants certificate (28dys conviction).
How many judges can appeal a judgment?
Appeal MUST uneven number, no less than 3
ERRORS RAISED IN APPEAL
Wrongful admission/exclusion evidence =
- quash WILL if unsafe.
ERRORS RAISED IN APPEAL
Erroneous exercise of discretion =
- quash not normally unless unjust?
ERRORS RAISED IN APPEAL
Rejection of submission of no case to answer =
quash WILL if unsafe
ERRORS RAISED IN APPEAL
Defects in indictment =
(duplicitous) quash MAY if unsafe – (indictment preferred+signed no jurisdiction) = WILL nullity
ERRORS RAISED IN APPEAL
Conduct of trial judge =
quash MAY.
ERRORS IN SUMMING UP
Misdirection on law =
- WILL quash, only if unsafe
ERRORS IN SUMMING UP
Wrongful withdrawal of issues from jury =
MAY if unsafe
ERRORS IN SUMMING UP
Misdirection on facts
- MAY if unsafe
ERRORS IN SUMMING UP
Improper comment on facts or defence case = only where blatant unfairness and pro-prosecution bias =
conviction imperilled.
ERRORS IN SUMMING UP
Comment on failure of accused to testify
MAY
ERRORS IN SUMMING UP
Comment on accused’s character =
- MAY, no right
ERROR AGAINST SENTENCE
Sentence wrong in law =
WILL
ERROR AGAINST SENTENCE
Sentence wrong in principle or manifest error =
reluctant. Only succeed if excessive.
ERROR AGAINST SENTENCE
Judge’s remarks when sentencing
MAY
ERROR AGAINST SENTENCE
Procedural error
MAY
ERROR AGAINST SENTENCE
Sense of grievance =
- WILL if justifiable sense of grievance
ERROR AGAINST SENTENCE
Disparity of sentence = TEST
- wrong in principle or manifestly excessive OR not objectionable and serious.
ERROR AGAINST SENTENCE
Failure to distinguish between offenders =
NO ground of appeal
Appeal docs should not uploaded TO….
Digital Case System
Appeal notice (HOW MANY DAYS)
CONVICTION OR SENTENCE?
28 DAYS
Unless trial judge granted certificate case is fit for appeal
wHAT IS REQUIRED?
Leave is required
Grounds of appeal can varied when lodged, if
registrar agrees,
Transcrips is sent to counsel (14dys) to perfect.
How many days does counsel have to perfect the transcript?
14 days
What happens if the counsel reads transcript + thinks appeal is not arguable?
, tell solicitors +registrar, not send copy of advice.
If Single judge decides if leave to appeal =
it is granted
Appeal against conviction
Is a skeleton argument required?
For conviction appeal
for sentence appeal
CONVICTION: MUST skeleton argument if appeal notice not sufficiently outline appeal or complex/novel law.
SENTENCE: MAY skeleton argument if complex issue raised.
Skeleton argument deadline for appeal?
Appellant and Respondent
appellant (21 dys before hearing),
respondent (14 dys before hearing).
If single judge yes leave one ground, but no on others, appellant must
renew app before he is allowed to argue them at substantive hearing.
Renewed app for leave (14dys)=
How many judges?
at least 2 judges, norm 3, applicant no right to attend even in custody
For a renewed app for leave, is legal aid allowed for representation at hearings?
Legal aid not allowed for representation at hearings. Where no counsel, placed on “non-counsel list”.
Does time for leave to appeal count for sentence.
Time for leave to appeal may not count for sentence.
CA will allow appeal:
Against conviction if unsafe
Time for lodging notice
28 dys.
Registrar must serve notice of hearing:
- Parties;
- Party’s custodian; and
- Any other party
At any appeal against conviction, CA will not
admit relevant evidence where advance basis for conviction nor previously argued or before jury.
Admission of evidence = discretionary =
necessary/expedient in interests of justice.
Is a certificate required?
Certification=exceptional. Leave permission= norm single judge. If refused, C renew app before 2 judge/full court.
If plea unsafe = quashed.
Factors to consider for retrial:
- Length time elapsed since original conviction + appeal; and
- Extent fresh evidence undermines strength against appellant.
Effect of successful appeal =
quash or retrial.
Can the court substitute a verdict of guilty?
Court can substitute verdict of guilty that jury could have found appellant guilty of substituted offence, and jury satisfied facts proved appellant guilty substituted offence.
If leave granted, what happens to the reference proceeds?
If leave granted, reference proceeds not alter sentence, but decide if unduly lenient.
The pros can appeal against C
1) terminating rules +
2) evidentiary rulings. rown Court if:
What happens where the prosecution appeals?
The pros must:
inform court intends appeal or request adjournment.
If the pros requests an adjournment,
what MUST the pros do?
, pros MUST request/notify judge immediately following “terminating” ruling (can be email).
If the pros requests an adjournment,
what MUST the courts do?
Court MUST = adjourn next business day. Judge MUST hear representative from def deciding grant leave – MUST make decision same day oral app.
Pros MUST give undertaking to offer no evidence if appeal abandoned/refused.
What is the
Criminal Case Review Commission?
– summary conviction/associated sentence to CC.
Criminal Case Review Commission?
TEST:
must real possibility CA or CC will quash original conviction or sentence. New evidence/fresh argument or exceptional circumstances are reasons. Respondent may serve resp notice, and MUST if wishes to make reps.
Appeal to SC MUST =
point of law of public importance, CA MUST certify or leave from SC.
Appeal to SC TIME LIMIT FOR LEAVE
Leave 28dys after decision/reasons whichever later. Time begins day decision, not after.
In the CC, the same judge
DOES WHAT TO SENTENCE?
In the CC, the same judge must vary the sentence, in mags it can be any judge, both within 56 days. At full hearing appeal against conviction – uneven no judges. For sentence appeal – can be two.
Fresh evidence admitted test =
if necessary or expedient in interests of justice.
Type of sentence A-G can refer to CA? =
TEST
Unduly lenient. Leave is required.
SAFETY TEST –
Question for CA in determination of appeal against conviction = if unsafe.
Unless the appellant is ordered to be retried, the CA quashing a conviction operates as “a
direction to the court of trial to enter, instead of record a conviction, a judgment and verdict of acquittal”.
When the D is ordered to be retried – Where CA allow appeal against conviction + interests of justice require, CA MAY order retrial. D MUST not be retried for any offence other than:
- Original trial offence
- Offence he could have been convicted at original trial
- Offence charged in alternative count
Decision to order retrial
CA MAY:
quash conviction + order court to enter not guilty or order retrial.
Decision to order retrial
CA MAY: quash conviction + order court to enter not guilty or order retrial. FACTORS to consider whether to retrial:
- Length of time elapsed between A’s original conviction + successful appeal; and
- Extend fresh evidence received undermines strength of case against A.
A trial might not be ordered because of publicity adverse to D. CA will allow app if on balance of probs, as a result of publicity, the verdicts would be unsafe.
PARTIALLY SUCCESSFUL APPEALSubstituting verdict – CA MAY substitute verdict found by jury of guilty for substitute offence if:
- Jury could on indictment have found A guilty;
- Jury satisfied of
- facts proving guilty
PRO AGAINST ADVERSE RULINGS
Appeals against rulings of CC on trial on indict:
- Appeals against terminating rulings;
- Appeals against evidentiary rulings which significantly weakens pros case
Rulings Adverse to pros
Pros MAY challenge CC ruling which would
bring case to end if ruling was in error.
Rulings Adverse to pros
Pros MAY only appeal to
certain counts on indictment. Pros can appeal other rulings made in trial and a “no case to answer” ruling. But REQUIRES: leave from trial judge or CA.
PRO AGAINST ADVERSE RULINGS
CONSIDERATION OF APPEAL = Adjournment – Pros must do what if they want an adjournment?
Pros must inform court it intends to appeal or request adjournment. For adjournment, pros MUST make request immediately following ruling. Notification of intention to appeal can be via email – email MUST go to parties + court. Court MUST grant adjournment = norm until next business day.
PRO AGAINST ADVERSE RULINGS
General rule =
court grants adjournment until…
the next business day, BUT if in interest of justice, court can permit a longer adjournment. BUT TEST: “a real justification for extension of time and expedition required”.
PRO AGAINST ADVERSE RULINGS
ANNOUNCING DECISION TO APPEAL = Following adjournment/immediately after ruling, pros MUST :
inform judge if he intends to appeal. Notification MAY be email, (sent parties + court).
PRO AGAINST ADVERSE RULINGS
). If Pros intends to appeal = MUST serve notice to appeal on:`
- Court
- The registrar; and
- The accused
MUST occur next day if appeal if expedited OR within 5 days if not, or apply orally (or by email) for leave to appeal. Judge MUST hear reps from def before deciding to grant leave, but MUST make decision on same day as oral app unless in interests of justice to take longer.
PRO AGAINST ADVERSE RULINGS
PROS UNDERTAKING = When appealing against terminating ruling, Pros MUST
undertake to offer no evidence against D if appeal = abandoned/refused. UNDERTAKING = PREREQUISITE.
UNDULY LENIENT SENTENCES
A-G MAY refer a sentence to CA if:
- He considers it “unduly lenient”;
- Leave of CA is granted; and
- Offence triable only on indictment
If leave = granted, CA will not alter sentence due to new material becoming available if not before original sentence judge. BUT if CA thinks = unduly lenient, it MAY receive fresh material in reaching correct sentence.
Even if unduly lenient, the court still has discretion whether to exercise its power.
APPEAL TO SC
Appeal MUST involve:
- Point of law of general public importance and
- Leave granted by CA or SC
- CA certifies case raises a point of law of general public importance.
NO appeal against court’s refusal to grant certificate.
Pros MAY appeal to SC against order for CA quashing A’s conviction.
An app to CA for leave to appeal to SC MUST be made within
28 days:
- after decision or
- date court gives reason for decision
whichever latest. TIME RUNS: On day of decision, not day following decision.
Form SC MUST be served on:
- Registrar; and
- All parties
SC has NO power to grant representation orders + app for appropriate rep before SC should be made to CA. CA may decide on papers if prospective appeal raises no point of law of public importance. Can refuse to allow oral submissions = no breach art 6. Appeal to SC is only by appellants, not applicants. NOT open to CA to certify question when applicant had been refused leave to appeal to CA.
Reference by Criminal Cases Review Commission =
Commission MAY refer to CA any conviction or sentence (unless fixed by law) following trial on indictment, to CA.
The CCRC may refer any summary (Mags decision) to CC.
Reference by Criminal Cases Review Commission =
CONDITIONS =
- Whether there is a real possibility that the CA/CC will quash original conviction or sentence
Norm the reference is made for an argument/information which previously wasn’t available and would lead to a real possibility that conviction would be quashed. But court may refer without such development of argument/info. When reference made, Registrar MUST serve reference on appellant and MUST treat it as notice of appeal unless notice of appeal given + give reasons. Ref MUST be served on respondent. Respondent MAY serve a “respondent’s notice” and MUST if he wishes to make representations or is directed by court/Registrar.
CCRC MAY require any public body to provide doc/info. CC on app by CCRC MAY order any person to give CCRC access to doc or material in person’s possession/control if it may assist CCRC.
