Appeals in the Supreme Court
A person who has been convicted by a jury, or has pleaded guilty and been sentenced by a Supreme Court judge, has a right of appeal to the Court of Criminal Appeal. The appeal must be made on one of the following grounds:
- against conviction on any ground which only involves a question of law;
- with the leave of the court, against conviction on any ground which involves a question of fact, or mixed law and fact, or some other sufficient ground of appeal; or
- with the leave of the court, against the sentence passed (Criminal Code, s401).
The notice of appeal must be lodged with the Court of Criminal Appeal within fourteen days of the date of conviction or sentence. If an appeal is not lodged within fourteen days, an application will have to be made to the Court of Criminal Appeal for an extension of time to appeal. An appellant is generally entitled to be present at the appeal. The grounds of appeal which will be relied on must be lodged with the court.
Appeal against Conviction
An appellant is not able to have the matter completely re-heard by the appeal court. The appellant must convince the Court of Criminal Appeal that:
- the jury’s verdict should be set aside as unreasonable or unable to be supported; or
- there was a wrong decision on a question of law; or
- there was a miscarriage of justice on any ground.
Even if the court finds in favour of the appellant on some point of law, it may still dismiss the appeal if it finds that no substantial miscarriage of justice has occurred.
The appeal will generally be decided on issues arising from the transcript of the evidence at the trial, but if the appellant has fresh evidence, this should be placed before the court in the form of affidavits from witnesses saying what they would say if called in a new trial.
Appeal Against Sentence
If the Court of Criminal Appeal agrees that the sentence is too severe, it may reduce it. The court also has the power to increase the sentence if it takes the opposite view. It should also be noted that the Crown can appeal against the sentence imposed by the trial judge if it thinks it was too lenient. The court can increase the sentence if it thinks fit.
Considerations before Appealing
There are two reasons why an appellant in jail should be careful about appealing. A sentence can be increased by an appeal court. The time spent in jail waiting for the appeal to be heard does not necessarily count towards the sentence. It may be several months before the appeal is heard, and an appellant held in custody will be ineligible for various programs arranged by the prison.
The appeal will usually consist of submissions (that is, argument) made by the appellant or their lawyer to the court followed by submissions in reply from the Crown. The judge will then have to decide the appeal. Decisions are frequently ‘reserved’ to allow the judge to carefully consider all the issues.
A further appeal can be made to the Full Court of the Supreme Court against a decision made by a single judge. From there, an appeal can lie on a point of law to the High Court, but only with permission (special leave) from the High Court.