Chapter 6 Part 6.3 - Divs 1 to 3 - Appeal against conviction; Appeal by offender against sentence; Crown appeal against sentence

Question 1

S274 right of appeal against conviction

Answer 1

Person convicted of offence by an originating court may appeal to the CoA ats conviction on any ground if CoA gives leave
(s3: OC means CC in original jurisdiction or TD of SC in original jurisdiction, OJ includes (a) proceeding for IO, (b) s242 related summary offence, (c) s243 unrelated summary offence, (d) contempt of court proceeding, (e) proceeding for variation/contravention of sentencing order, (f) s 176 offence under Serious Offenders Act

Question 2

S275 How appeal is commenced

Answer 2

(1) file application for leave within 28 days of sentencing day or any EOT granted per 313 (2) Registrar provides notice to respondent w/in 7 days of filing

Question 3

S276 Determination of appeal against conviction

Answer 3

(1) CoA must allow conviction appeal if appellant satisfies that
(a) jury verdict is unreasonable or can’t be supported having regard to evidence (b) as result of error irregularity in or in relation to trial there’s been substantial miscarriage of justice (c) for any other reason, SMJ. (2) in any other case, must dismiss appeal

Question 4

S277 Orders etc. on successful appeal

Answer 4

(1) if CoA allows appeal, set aside conviction of offence (OffA) and must
(a) order new trial for OffA (b) OR enter acquittal for OffA
(c) If (i) could have been FG for OffB (ii) and is satisfied that jury/court must have been satisfied of facts proving OffB guilt
convict of OffB and impose sentence no more severe than original (d) if satisfied of (c)(i), but not satisfied per (c)(ii), order new trial for OffB
(e) if satisfied NG of OffA because of mental impairment, enter such finding and order per s 23 of Crimes Mental Impairment Act (f) if could have been guilty of OffB and Court satisfied (i) jury must have been satisfied of acts/ommissions comprising OffB and (ii) appellant should have been found NG b/c of impairment, enter such finding and order per s 23 of Crimes Mental Impairment Act
(2) If CoA orders new trial, must order appellant attend on specified date on which new trial will be conducted
(3) If COA sets aside OffA conviction, may vary sentence that (a) was imposed for offence other than OffA at or after the time when the appellant was sentenced for OffA; and (b) accounted for sentence for OffA.
(4) power of CoA under this section to impose sentence in substitution for sentence imposed by the OC may still be exercised even if sentence imposed by OC is an agg sentence.
(5) if at appeal conclusion appellant remains convicted if 2+ offences, CoA can either impose separate sentence re: each offence, or impose aggregate sentence

Question 5

S278 right of appeal against sentence imposed by originating court

Answer 5

Person sentenced for offence by originating court (s3: CC in original jurisdiction or TD of SC in original jurisdiction, OJ includes proceeding for IO, s242 offence, s243 offence, contempt of court, variation/contravention of sentencing order, s 176 offence) may appeal to CoA against sentence imposed if leave given

Question 6

S279 how appeal is commenced

Answer 6

(1) file notice of app for leave to appeal in acc. With court rules within 28 days after day on which person sentenced
(2) Reg. of Crim App must provide R copy of notice within 7 days

Question 7

S280 determination of application for leave to appeal under s278

Answer 7

(1) CoA may refuse application for leave to appeal in relation to any ground of appeal if (a) there’s no r’able prospect CoA would impose less severe sentence than that first imposed, OR (b) no r’able prospect CoA would reduce total effective sentence despite there being an error in sentence first imposed
(2) application may be refused even if CoA considers there may be r’ably arguable appeal ground (3) on refusing application b/c of (1)(b), Court may, if considered appropriate, (a) substitute less severe sentence (b) make any other appropriate order

Question 8

281 Determination of appeal

Answer 8

(1) Court must allow if appellant satisfies Court that (a) there was error in sentence first imposed and (b) diff sentence should be imposed (2) in any other case, CoA must dismiss appeal
(3) if CoA considering imposing more severe sentence, must warn appellant as early as possible of such possibility

Question 9

282 Orders etc. on successful appeal

Answer 9

(1) if CoA allows appeal, must set aside sentence and (a) impose sentence considered appropriate (more or less severe) OR (b) remit to originating court (2) CoA can also make any other order thought appropriate in addition to imposing sentence under (1)(a)
(3) if remits (a) may give directions concerning manner and scope of further hearing by OC, including judicial composition, and (b) originating court must follow those directions, if any

Question 10

283 Right of appeal against sentence of imprisonment imposed by County Court on appeal from MC

Answer 10

(1) In this section imprisonment Includes detention in YJC or YRC but not imprisonment in default of fine payment
(2) person sentenced to imprisonment term by CC or SC under ss 256, 259 or 262 may appeal ats. Sentence if (a) in proceeding, MC did not originally imprison (b) leave is given by CoA

Question 11

284 How appeal is commenced

Answer 11

(1) file application for leave to appeal within 28 days of sentence imposed or s313 extension (2) RCA to provide to respondent copy of notice in 7 days after filing

Question 12

S284A Determ. of application for leave to appeal under section 283

Answer 12

Just like s280 above

Question 13

S285 Determination of appeal

Answer 13

Just like s281 above

Question 14

S286 Orders etc. on successful appeal

Answer 14

286(1) and (2) just like 282(1) and (3) above

noting remittal not to OC but to CC or TD of SC as appropriate

Question 15

S287 – Right of appeal—inadequate sentence

Answer 15

DPP may appeal to CoA from OC sentence if DPP (a) considers there’s error and diff should be imposed (b) AND is satisfied appeal is in public interest

Question 16

S288 – How appeal is commenced

Answer 16

(1) file NoA within 28 days/313 period (2) sign personally by DPP
(3) serve personally on R in 7 days after filing,
(4) provide copy to last LP if reasonably identifiable

Question 17

289 – Determination of Crown appeal

Answer 17

(1) CoA must allow if satisfied by DPP that (a) there’s sentencing error and (b) different sentence should be imposed
(2) In considering whether an appeal should be allowed, CoA must not take account of any element of double jeopardy involved in respondent being sentenced again, if appeal is allowed.
(3) otherwise must dismiss appeal

Question 18

290 Orders etc. on successful appeal

Answer 18

(1) CoA must set aside and impose approp. Sentence (whether more/less severe) (2) can make any ancillary order thought appropriate (3) ignore double jeopardy pulling towards less severe sentence

Question 19

290A Right of appeal against certain sentences imposed by County Court or Supreme Court on appeal from MC

Answer 19

(1) Applies to sentence imposed under s 256 on appeal from s 254 where SC or CC made finding under (a) s 5(2H)(a)-(e) of Sentencing Act ((a): offender assisted/ gave undertaking to assist police re investigating or prosecuting offence, (c)(i) offender proves on BOP he/she had IMF causally linked to offence commission and substantially/materially reduces their culpability; (ii) offence has IMF that would result in them having substantially/materially greater burdens on imprisonment than ordinary burdens
(d) Court proposes to make CSTO or RTO re: offender
(e) substantial compelling circs that are exceptional and rare that justify not making imprisonment order + CCO or
(b) 10A Sent. Act special reason exists – duplicate of s 5
(2) DPP may appeal to CoA against such sentence if (a) considrs there’s error, diff sentence should be imposed (b) public interest

Question 20

290B how app com.

Answer 20

Just like 288

Question 21

290C determination of Crown appeal under s 290A

Answer 21

Just like 289

Question 22

290D orders etc. on successful appeal

Answer 22

Just like 290

Question 23

291 Right of appeal – failure to fulfil undertaking

Answer 23

Without limiting appeal right under s 287, DPP can appeal to CoA against sentence imposed on person by OC if (a) sentencing was lesser because of undertaking to assist law enforcement with investigation or prosecution of an offence, (b) DPP considers that person failed wholly/partly to fulfil undertaking

Question 24

292 How appeal is commenced

Answer 24

(1) File NoA per court rules (NB no time limit) (2) signed by DPP personally (3) personal service of NoA in 14 days after filing
(4) provide copy to the last LP if reasonably identifiable

Question 25

293 – Det. of Crown appeal—failure to fulfil undertaking

Answer 25

On an appeal under S 291, if the CoA considers that the resp has failed, wholly or partly, to fulfil the undertaking referred to in section 291(a), the CoA may allow the appeal.

Question 26

294 Powers of Court of Appeal on successful appeal

Answer 26

(1) (a) may set aside sentence (b) impose appropriate sentence, having regard to the failure to fulfil the undertaking
(2) ignoring DJ that might pull towards lesser sentence