Appeal

Question 1

How can the offender appeal from the Magistrate’s Court

Answer 1

Conviction (CC)
By right
Rehearing - the CC must set aside the sentence and impose the same or more appropriate sentence.

Sentence (CC)
By right
Must show…

Question of law (SC)
By right

Question 2

How can the DPP appeal from the Magistrate’s Court

Answer 2

Sentence
By right
Must show… (They cannot re-appeal)

Question of law
By right
Must show….
If exercised, immediate abandonment of any right of appeal to CC (rationale?)

Question 3

How can the offender appeal from the County Court?

Answer 3

Against conviction (COA)
Requires Leave
Must allow if:
- jury verdict unreasonable and not supported on evidence
- substantial miscarriage of justice because of error / irregularity / other reason
Otherwise, must dismiss
Court can: order new trial, acquit, convict or order new trial of alternative offence, supervision order (because found not guilty due to mental impairment), re-sentence of any offence of which appellant remains convicted

Against sentence
Requires leave
Must allow if error vitiating exercise of original sentencing discretion and different sentence should be imposed, otherwise must dismiss
“Error” includes of fact, law (failure to avert to some material consideration), taking into account immaterial matters, error implied from manifestly excessive sentence.
Must warn appellant if considering more severe sentence.
Court can:
- dismiss appeal
- re-sentence
- remit the matter to originating court
- cannot increase sentence based on new evidence on appeal

Question 4

How can the Crown appeal from the County Court or Supreme Court?

Answer 4

Against sentence
??

??

Question 5

Interlocutory appeal from County Court or Supreme Court

Answer 5

• Requires leave
• Leave granted if in interests of justice having regard to
o Disruption
o Whether appeal may
 Render trial unnecessary
 Substantially reduce time
 Resolve issue of law, evidence or procedure necessary for trial
 Reduce likelihood of successful appeal
 Other relevant matters
o Must not do so after trial commenced unless reasons outweigh disruption.

• Trial judge must certify
o if about admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and
o if not about evidence, that the interlocutory decision (ID) is otherwise of sufficient importance to justify interlocutory appeal; and
o if the ID made after trial commences, either-
 issue not reasonably able to be identified before trial; or
 party not at fault in failing to identify issue.

Question 6

Case stated

Answer 6

• From CC or SC (trial div)
• Court may ‘reserve’ question of law for COA if:
1. in interests of justice; and

2. Having regard to
   o Extent of disruption if appeal
   o Whether determination of appeal may
    Render trial unnecessary
    Substantially reduce time require for trial
    Resolve and issue of law, evidence or procedure necessary for conduct of trial
    Reduce likelihood of successful appeal against conviction
    Other relevant matter.

• Mustn’t give leave after trial commenced unless reasons clearly outweigh disruption.
• If original court refuses to reserve, applicant may apply to COA for order calling on court and respondent to show cause why the question of law should not be reserved.
• If court reserves, court must state a case, setting out question and circumstances (and sign and transmit to court of appeal)
• Court must adjourn trial without discharging jury
• COA can hear and determine QOL finally or remit to court.

Question 7

Appealing from Supreme Court (COA?) to High Court

Answer 7

•	There are statutory avenues however if out of time or exhausted the following are available
•	Prerogative writs
o	Mandamus
o	Prohibition
o	Certiorari
•	Writ of habeas corpus
•	declaration

More info?