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My legal matter concerning an application for a Domestic Violence Order was managed by Mr Thomas Allen. I am grateful for the outcome he obtained. Without Mr Allen and his ongoing support, I would be certain of a different result. It has been an extremely stressful period. Mr Allen’s astute ability to liaise on my behalf and his expertise was invaluable and for which I am grateful as I am now able to move forward. Thanking you
I would like to take this opportunity to thank Armstrong Legal and specifically Mr Thomas Allen for representing me in my recent case. At the outset, I would like to thank Mr Allen for the very professional delivery of his legal service. From the first time that I met Mr Allen, I was very impressed with his demeanour and delivery as he made me feel at ease knowing the severity of my case. Mr Allen not only gave me the possible positive outcomes of the case but also the realisation of the worst-case scenario as far as sentencing goes. … I will certainly be recommending Armstrong Legal to any of my friends or family needing representation in criminal matters. Thank you so very much.
Thank you for your representation and help. Fingers crossed for the next step and parole. I just want to say that from the first phone call to your office, your service has been outstanding and have put my mind at ease. I am glad I picked your number to ring.
Thank you Armstrong Legal, the lawyers that have helped over the past 3 years but more importantly, thank you to Thomas Allen for the major part you and Mr Buckland played. Cannot thank you enough. Cheers.
Hi all. I would like to thank Ms Lisa Riley for all her help with my legal issues this past month. It was the most harrowing experience of my life and thanks to her expertise, professionalism and knowledge of the law, I came out almost unscathed. I have no hesitation in recommending Lisa Riley and Armstrong Legal if you need help. The service is amazing and the cost was very minimal for the great outcome. Thank you Lisa for helping me in the most difficult time.
I just want to thank you from the bottom of my heart. My whole life I was thrown away, you made me feel like I did mean something. I could not have asked for a better lawyer. Your compassion and love for your job is inspiring. Your upfront and honesty were muchly appreciated, you are a beautiful person. Thank you for not giving up on me and thank you for all the work you put in. I wish you all the best for the future and I will be recommending you to everyone I know. You're amazing!!!!
I just wanted to thank you for representing me on Monday, I was overjoyed & relieved with the outcome. I don’t think it could have gone any better. All the best, I hope you got to celebrate this one instead after work, you forever made a difference in my life.
I know I thanked you before we parted company but please allow me to reiterate in writing my sincere deepest thanks for defending me in court today. … Armstrong Legal certainly has a great Lawyer you are a credit to the company and I'm quite sure you will secure a very successful future! … My Kindest Regards and Thanks
Throughout Angela has been the consummate professional. She maintained a calm, yet strong demeanour remained informative and completely open in her communication and took complete ownership of the situation. We felt confident we finally had an advocate to steer us out of the nightmare we were in, and she did so with great respect and sincerity. I cannot speak more highly of Angela. She has literally rescued our family from what looked very much like a hopeless future.
Words can’t describe how grateful I am to Trudie Cameron being my solicitor and to Andrew Tiedt presenting my case in the court. They both have been very supportive and amazingly professional and effective. I’ve got an absolutely fantastic outcome I couldn’t even dream about.
Soon after meeting Andrew I knew he was the solicitor I wanted to handle my matter. He immediately sprang into action which brought me stability and hope during a tumultuous time in my life. Andrew was never afraid to give me straight answers to my tough questions which is a true mark of integrity. He is clearly at ease in the court environment and I believe his calm and measured demeanour went a long way to helping me secure the best result from my day in court. I would certainly recommend you approach Andrew if you need assistance.
"Andrew Tiedt was very professional and considerate to personal circumstances and gave sound advice that resulted in the best outcome possible. Highly recommended."
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 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 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 is not 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 rare that appeals will continue after a Parker Warning has been given.
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 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 grant bail only 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 prosecution 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:
- particular accent.
The court would then consider the reliability of the evidence using factors such as:
- the number of words spoken;
- the length of time the witness could hear and/or see the identified person;
- the 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.
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.
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