Criminal Appeals PDF

Preview

Summary

Appeals notes for the criminal part of the course...

Description

LAWS1014 Criminal Procedure Notes (2020)

Appeals Court Hierarchy High Court

Court of Criminal Appeal

Supreme Court District Court

Local Court Legislation CAA: Criminal Appeal Act 1912 (NSW). CARA: Crimes (Appeal and Review) Act 2001 (NSW). Appeal from Local Court to District Court Appeal by way of rehearing – CARA s 18(1). Defendant: - As a right, against conviction or sentence, or both – CARA s 11(1). - Leave is required for guilty pleas – CARA s 12(1). - Appeals must be made within 28 days of sentencing – CARA ss 11(2)(a), 12(3)(a). Prosecution: - As a right, against a sentence imposed in relation to an indictable offence dealt with summarily – CARA s 23. Appeal from Local Court to Supreme Court More expensive than the District Court, only usually done when law is unclear. Can set aside, vary or dismiss conviction or sentence. Defendant: - As a right, against conviction and/or sentence, on a question of law – CARA s 52. - Leave is required in relation to a question of fact or mixed question of fact and law – CARA s 53(1). - Leave is required, on a question of law alone, against an interlocutory order – CARA s 53(2). Prosecution: - As a right, on a question of law, against a sentence, stay of proceedings or order dismissing proceedings – CARA s 56. - Leave is required, on a question of law alone, against an interlocutory order – CARA s 57.

LAWS1014 Criminal Procedure Notes (2020)

Appeal from Local Court or Supreme Court to Court of Criminal Appeal Appeals against a conviction are usually about errors of law in the conduct of the trial (e.g. admissibility of evidence, trial judges summing up and directions to the jury). Can allow appeal and acquit, or order a retrial. Defendant: - As a right, against conviction on a question of law – CAA s 5(1)(a). - By leave, against a conviction on a question of fact, or a mixed question of fact and law – CAA s 5(1)(b). - By leave, against a sentence – CAA s 5(1)(c). Prosecution: - As a right, appeal against sentence – CAA s 5D(1). Judge: - Submit for determination a point of law from trial or conviction – CAA s 5A(1). Appeals to the High Court - Judiciary Act 1903 (Cth) s 35(2) – By leave, regarding a question of law which is of public importance: (a)(i), or to resolve differences of opinion in lower courts: (a)(ii), or in the interests of the administration of justice (b). - Infrequently granted and applications rarely successful. Crown Appeals and Double Jeopardy No general right for prosecution to appeal against acquittal or finding of not guilty. The basis for this is set out in Carroll [2002]: - Accused charged with murder of 17-month-old girl and was acquitted on appeal. - Police then discovered records which would establish the accused’s guilt beyond reasonable doubt. - As police could not charge him for murder again (principle of double jeopardy – prevents the power to prosecute to be used as an instrument of oppression), they attempted to charge him with perjury at his previous trial at which he testified. - He was initially charged over this perjury, however, the High Court overruled this as this was grounds of double jeopardy and amounted to prosecuting him twice for the same offence. Subsequent amendments to CARA – s 100(1) – now allow the Court of Criminal Appeal to order a retrial if there is (a) “fresh and compelling evidence” and (b) “is in the interests of justice”. CARA s 102(2) – evidence is fresh if it (a) was not and (b) could not have been, with the exercise of reasonable diligence, adduced (brought forward or tendered, so not evidence which was rejected – Attorney-General (NSW) v XX [2018]) in earlier proceedings. CARA s 102(3) – evidence is compelling if it is (a) reliable, (b) substantial, and (c) highly probative. CARA s 104(2) – not in the interests of justice unless satisfied a retrial will be fair. CARA s 104(3) – in determining interests of justice, court must look at (a) length of time since alleged offence, and (b) whether police or prosecutors failed to act with reasonable diligence or expedition in connection with the application for a retrial....