This article was written by Andrew Fraser - Senior Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

Criminal Appeal


If a person doesn’t agree with a decision made in a lower criminal court they can lodge an application for a criminal appeal in the Court of Appeal under Division 5.4.7 of the Court Procedure Rules 2006. The Court of Appeal hears matters in February, May, August and November each year and is the highest court in the ACT. If a party receives a decision from the Court of Appeal and thinks the decision is wrong they can appeal to the High Court of Australia. This article will outline how criminal appeals are dealt with by the Court of Appeal.

What Matters are Heard in the Court of Appeal?

The Court of Appeal hears the following types of criminal appeals.

Sentence Appeals

Sentence appeal are appeals where the defence is appealing against the severity of a penalty handed down by a lower court, or where the prosecution is appealing against a sentence’s leniency.

Verdict Appeals

Verdict appeal are where a party is appealing on the basis that a finding was wrong. The error may be related to a judge’s direction to the jury, the admission of evidence, or the behaviour of the Judge or of a party.

It should be noted that although appeals against the acquittal of an accused are possible, these appeals are rare.

What is the Appeal Process?

An appeal can be started by filing a notice of appeal with the court under Section 5402 of the Court Procedures Rules 2006. The Notice of Appeal must be in the approved form and contain the following information:

  • the Notice Of Appeal form and the date of the order that is being appealed; and
  • whether the appeal is against all or part of the order; and
  • if the appeal is against only part of the order, the part that is being appealed; and
  • whether the applicant intends to put further evidence before the court; and
  • if further evidence is intended to be put before the court a description of the evidence; and
  • the grounds for putting further evidence before the court; and
  • the order sought; and
  • a summary of the order appealed and supporting information and the order appealed form.

If the court agrees to allow the appeal, a copy of the order giving leave to appeal will be attached to the Notice of Appeal and served on the relevant parties.

In cases where there is a respondent to the appeal such as the Director of Public Prosecutions the Notice of Appeal should include instructions that the applicant should not raise any matter that isn’t stated in the Notice of Appeal or rely on any information not stated in the Notice of Appeal.

The Notice of Appeal and case summary should be filed in court within seven days of leave to appeal being granted, unless further time has been given by the court.

Fresh Evidence Appeal

It is rare that the Court of Appeal will accept fresh evidence that wasn’t given at the trial or sentence hearing if the applicant or legal representative was aware of the evidence at the time. The court will only accept fresh evidence if not doing so would result in a miscarriage of justice, for example a confession from an alleged victim that the complaint was false.

What Orders can the Court Make?

When dealing with an appeal, the Court of Appeal can:

  • Dismiss the appeal on the ground that there wasn’t a miscarriage of justice in a lower court; or
  • Quash the conviction and order a retrial; or
  • Quash the conviction and order an acquittal; or
  • Increase the sentence subject to a Parker Warning; or
  • Decrease the sentence; or
  • Substitute a different sentence.

What is a Parker Warning?

When a defendant appeals against a sentence on the basis that it is too tough, that is known as a severity appeal. When lodging an appeal against severity there is a chance that the Court of Appeal will increase the sentence, decrease the sentence or sentence the person to the same penalty.  When deciding a severity appeal, a judge who is considering increasing the sentence originally imposed will warn the appellant that the penalty may increase. This is known as a Parker Warning. A Parker Warning gives the appellant the chance to withdraw their appeal. It is very rare that appeals will continue after a Parker Warning has been given.

Costs

In cases where the defence appeals and wins the appeal, it can apply for reimbursement of its costs if:

  • the investigation was not carried out fairly or was unreasonable;
  • the initiation of the criminal proceedings was in bad faith or carried out improperly;
  • the prosecution did not investigate any relevant matter it was aware of that suggested the accused may not be guilty;
  • subject to other circumstances relating to the proceeding’s conduct it is reasonable to award costs.

To be awarded costs, the appellant will also need to make sure that evidence is heard during the proceeding that satisfies one of those criteria.

Bail Pending Appeal

It is very rare that bail will be granted to a criminal defendant pending an appeal in the Court of Appeal.

Section 43a of the Bail Act 1992 states that if a decision relating to bail has already been made by the Supreme Court, the court will only grant bail if:

  • the circumstances have changed, for example, the applicant now has a suitable residential address; or
  • there is fresh evidence; or
  • other relevant information that wasn’t available when the original decision was made.

Common Grounds of Appeal in Criminal Matters

The following are common grounds of appeal in Criminal Matters.

Problematic Identification Evidence

An appeal in the Court of Appeal may succeed when the verdict was based on identification evidence that left reasonable doubt about the identity of the accused person.

This may apply in cases where the Crown relies on the identification of a person by a single witness who may claim that their identification of the accused is based on distinctive characteristics such as:

  • tattoos;
  • clothing;
  • particular accent.

The court would then consider the reliability of the evidence using factors like:

  • the number of words spoken;
  • length of time the witness could hear and/or see the identified person;
  • distance between the witness and person at the time of identification;
  • environmental factors such as lighting;
  • whether the witness was affected by drugs and/or alcohol;

A judge will instruct juries to exercise special caution before accepting identification evidence. If appropriate instruction is not given then there may be grounds for the court declaring that a miscarriage of justice has occurred.

In a recent decision by the NSW Court of Criminal Appeal they stated, “the identification of a voice is notoriously liable to be mistake.”

If there is reasonable doubt as to the identification of a person then the court may conclude that a jury could reasonably entertain doubt as to the guilt of the accused. If that is the case the appellant will be entitled to an acquittal even though they were originally found guilty by a jury.

Ineffectual Assistance of Trial Counsel

If the accused’s lawyer failed to adequately present the defence then there is a miscarriage of justice and the court can intervene based on incompetence.

When considering this as the basis for an appeal against conviction it is important to note that trial lawyers make numerous strategic decisions throughout a case. An appellant will not be able to apply to the Court of Appeal in the hope that their lawyer can use a new strategy. If however there was a miscarriage of justice and the accused person was misrepresented while on trial then there has been a miscarriage of justice and the appeal will be upheld.

If the accused person’s lawyer did not present certain readily available evidence such as medical documents, phone records, CCTV footage or other supporting documents this may amount to a miscarriage of justice. The High Court of Australia has stated:

When it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?

If there could not be any such explanation, there may have been a miscarriage of justice. It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. If, however, there could be a reasonable explanation for not calling the evidence, that will be the end of the matter.

Insufficiency of the Trial Judge’s Directions to the Jury

A judge is responsible for giving proper directions to the jury when summing up. An expectation of the justice system is that they are fair, balanced and impartial when directing the jury to make a decision.

If a judge is not impartial when directing a jury then there could be a miscarriage of justice which would be a ground of appeal; however if the accused person’s lawyer does not object to the judge then it’s normally a reasonable indicator that the directions given were fair and adequate.

If you require legal advice about criminal appeals or any other legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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