Court of Criminal Appeals


In New South Wales the Court of Criminal Appeal (CCA) deals with appeals from the District Court and Supreme Court. For criminal matters the CCA is the highest court in the State. However, an appellant can seek leave to appeal to the High Court if they are unsuccessful in the CCA. The CCA only deals with cases where it is said to be an error of law by rights. When issues of fact arise leave needs to be obtained.

If you, a family member or a loved one has been convicted of an offence following either a trial before a jury or a judge sitting without a jury (District Court of NSW or Supreme Court of NSW) and you believe that there has been an injustice and the verdict is wrong, an appeal may be brought to the NSW CCA under the Criminal Appeal Act 1912.

If it allows an appeal against conviction, the CCA has the power to set aside the conviction from the original trial and enter a verdict of acquittal (not guilty) or order a re-trial.

The CCA has no power to make a costs order against a person who brings an unsuccessful appeal against their conviction or sentence. This means that if you lose your appeal, there is no risk that you will have to pay the prosecution’s costs of the appeal.

Common types of appeals heard in the Court of Criminal Appeal

  • An error of law in respect to the severity of a sentence. Either crown or defence.
  • An error of law in respect to the finding of guilt of the appellant. Usually related to a judge’s direction to the jury; the admission of evidence or the behaviour of the Judge or Crown.
  • An error of law in respect to the acquittal of an accused. (Crown appeal). The crown will seek orders for the re-trial of the accused. These appeals are rare.

Bail

Obtaining bail pending the hearing of an appeal in the Court of Criminal Appeal is difficult but not impossible. Section 30AA Bail Act 1978 states that the court must be satisfied that special or exceptional circumstances exist, justifying the granting of bail. Armstrong Legal have obtained bail for a number of our clients who have had to demonstrate that exceptional circumstances exist for the granting of bail.

The process of appealing to the Court of Criminal Appeal

To appeal to the Court of Criminal Appeal the appellant must file a Notice of Intention to Appeal within 28 days from sentence. If the Notice of Intention to Appeal is not filed within this time the Court is normally flexible so as not to deny an appellant their opportunity to appeal normally lengthy jail sentences. An appellant who does not file the Notice of Intention to Appeal will be required to file a Notice of Application for Extension of Time for Notice of Intention to Appeal.

The party who is bringing the appeal (applicant) must lodge a Notice of Appeal within 6 months of filing the Notice of Intention to Appeal. Again, if the appeal is not lodged within 6 months the applicant must seek an extension from the Registrar of the Court of Criminal Appeal.

When filing the Notice of Appeal the applicant must also file the following documents:

  • Grounds of appeal
  • Submissions on appeal
  • Certificate under rule 23C of the Criminal Appeal Rules.

The rule 23C certificate is a signed certification that the transcripts and exhibits are available from the District or Supreme Courts.

The appeal hearing in the Court of Criminal Appeal

Appeals against sentence are normally determined by two Judges. Appeals against conviction and Crown appeals are normally determined by three judges.

The Judges hearing an appeal will have the appeal documents including the transcripts of the trial or sentence and the submissions by both the prosecution and defence. These documents are prepared by the appellant’s legal representative and organised into appeal books. There are strict rules on how the appeal books are presented and unless they are prepared correctly they are likely to be rejected by the Court. Normally the Judges would have read the material before the hearing date and be familiar with the issues.

Normally, both parties are represented by barristers who specialise in appellant work. The judges will give both legal representatives opportunities to make oral submissions to expand on their written submissions. It is common for the Judges to fire questions at a legal representative for them to explain or justify their legal position. It is important that you select your barrister carefully. You need a barrister who prepares thoroughly and is experienced in arguing matters before the Court of Criminal Appeal. Armstrong Legal are able to recommend a number that we brief regularly and who have a proven track record.

The Judges may deliver their judgments immediately or may reserve their decision and adjourn the matter to another date to hand down their judgments.

The following are some examples of grounds upon which appeals to the NSW Court of Criminal Appeal may succeed:

Problematic Identification Evidence

The possibility that a jury who has seemingly based its verdict upon identification evidence (either voice or visual identification) should have held a reasonable doubt about the accuracy of the identification as being the accused person.

Where a person is convicted following a trial where a key issue is the identification of that person by a prosecution witness, a careful examination of the strength of the identification evidence and the directions given by the trial judge to the jury is warranted, as this may be a powerful ground of appeal.

In some cases, the only evidence that the Crown may rely on to establish that the accused is the person, who committed the offence is the identification of that person by a single witness. This witness may claim that the identification is based on ‘unique’ characteristics, such as tattoos, distinctive clothing; or a particular accent when heard speaking certain words. In that case, the CCA will likely consider for itself factors affecting the reliability of that evidence, for example:

  • Number of words spoken;
  • Length of time for which the witness was able to hear and/or see the person identified;
  • Distance between the witness and the person at the time of identification;
  • Environmental factors such as lighting;
  • Affectation by drugs and/or alcohol; and
  • Witness’ age

Juries must also be instructed to exercise special caution before accepting identification evidence. If a trial judge fails to provide an appropriate instruction in relation to the potential dangers or problems with identification evidence, this may be grounds for the CCA declaring that there has been a miscarriage of justice and ordering a re-trial. See below for further information in relation to insufficient directions to a jury as a possible ground of appeal.

In a recent decision, the CCA unanimously held, in relation to the dangers of voice identification evidence:

“The identification of a voice is notoriously liable to be mistaken.”

If there are uncertainties with identification evidence the CCA may be led to conclude that a (hypothetical) jury, acting reasonably must have entertained a reasonable doubt as to the guilt of the accused. If so, the appellant will be entitled to an acquittal on appeal, even though he has originally been found guilty by a jury at trial.

Ineffective Assistance of Trial Counsel

The accused’s trial counsel (lawyer) has failed to adequately present the defence case in relation to one or more important aspects with the result that there is a miscarriage of justice.

The CCA will intervene on the ground of incompetence of trial counsel only if such incompetence must have resulted in a miscarriage of justice. There will have been a miscarriage of justice if the Court considers that the alleged incompetence of counsel deprived the appellant of a chance of acquittal that was fairly open.

It is important to note, when considering this as a possible basis for a conviction appeal to the CCA, that all trial counsel make numerous strategic decisions throughout a case. As such, it is not open to an appellant to merely try a different approach on appeal, in the hope that the new case strategy is more effective in creating a reasonable doubt as to the offence having been committed. If the CCA is of the view that there is a real possibility that the appellant seeks to adopt a different approach to a key issue than that which he authorised his counsel to do at trial, an appeal on these grounds is unlikely to succeed.

However, the following matters might lead the CCA to conclude that, due to the manner in which an accused person’s has been represented at trial, there has been a miscarriage of justice (and therefore uphold the appeal):

  • Trial counsel fails to propose certain important aspects of the accused’s version of events to key prosecution witnesses who might be expected to have knowledge of these matters (and the accused or another defence witness subsequently gives evidence); or
  • Corroborating evidence (such as medical documents, phone records, CCTV footage, or other supporting documents) existed and was readily attainable to support key aspects of a defendant’s version of events but this material was not sought to be introduced into evidence at trial as part of the defence case.

In relation to these points, the High Court of Australia has made the following useful statement:

“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

The trial judge has delivered a summing-up or provided the jury with directions that are insufficient, inaccurate or otherwise unfair to the accused.

A critical part of ensuring that a person receives a fair jury trial is the giving of proper directions by the trial judge in relation to how the law applies to various aspects of the evidence introduced throughout the trial. Consequently, the adequacy or appropriateness of a trial judge’s directions to the jury deserves very close attention in determining whether to bring a conviction appeal in the CCA.

The overriding obligation of a trial judge is to provide the jury with a summing up and directions in a way that is fair, balanced and impartial.

Common issues with jury directions that arise in many different types of trials (and may lead to effective appeal grounds) include:

  • Markuleski directions: This arises where there are multiple charges on the indictment and a particular prosecution witness has given evidence about more than one of the charges. If the jury has an issue or problem with the credibility of the witness’ evidence in relation to one of the charges, it should think carefully about what impact that has on the reliability of the evidence that the witness gave in relation to the other charge(s).
  • If the jury has heard important expert evidence during the trial it will usually be necessary for the trial judge to take the jury through the evidence with some care to ensure that the evidence is understood and its relationship to the issues in the case made clear. Where the prosecution and defence each have their own experts who differ in their opinions, a general reference to differences between experts will usually not be sufficient to ensure the jury is adequately assisted in its task.
  • There should be a general balance in the way the jury is directed as to the respective prosecution and defence cases, in relation to the trial judge’s summary of the evidence and any comments on the addresses of counsel. When referring to defence counsel’s argument, great care should be taken to ensure that any adverse (negative) comments cannot be taken by the jury as being the judge’s personal views rather than arguments that have been advanced by the prosecution.

The issue of whether an appellant’s trial counsel requested that the trial judge give a particular direction which was not given (or opposed a problematic direction that was given) is of relevance to whether an appeal to the CCA on this ground will succeed. The CCA has held that the absence of an objection from trial counsel is usually a reasonably reliable indicator of the fairness and adequacy of the directions given.

However, the High Court of Australia has held that a failure to give a particular direction that was not requested by a defendant’s trial counsel may result in a miscarriage of justice (meaning the CCA should allow the appeal and order a re-trial).

Fresh evidence

It is unusual for the CCA to admit fresh evidence that was not given at the trial or sentence hearing if the appellant or legal representative was aware of the evidence at that time. Normally the CCA will only allow the evidence if a miscarriage of justice would result if the evidence was not admitted. For example a confession from the alleged victim that the complaint was false.

Orders the court can make

In conviction appeals (all grounds appeals) the Court can either:

  • Dismiss the appeal;
  • Find that the grounds of appeal are established, but dismiss the appeal on the basis that there has been no actual miscarriage of justice;
  • Set aside (quash) the conviction and order a retrial.
  • Set aside (quash) the conviction and order an acquittal; or

In severity appeals the court can either:

  • Dismiss the appeal;
  • Find that the grounds are established, but nevertheless dismiss the appeal on the basis that a miscarriage of justice has not occurred
  • Quash the conviction and order a retrial.
  • Quash the conviction and order an acquittal

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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