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How a Court of Appeal conviction appeal works
The main points of practice direction No.2 of 2011:
- Within seven days Counsel who appeared on the trial or plea and/or instructing solicitors will have to advise the client in conference ( in person, phone or videolink) as to Counsel’s views on a successful appeal.
- Counsel who appeared on the trial or plea will then in writing “as soon as practicable” have to confirm their advice to their instructing solicitor.
- If the advice is to appeal then it is assumed that the Counsel who appeared on the trial or plea will be briefed to provide the grounds of appeal and accompanying “written case”.
- A written case is to enable the Court to grasp the facts and issues without oral argument.
An appeal should not be prepared on the basis that a solicitor is “instructed to do so” by their client. The solicitor must consider the grounds to be reasonably arguable and be prepared to argue them before the Court.
- The application for leave to appeal against a conviction and the accompanying written case must be filed within 28 days after the day on which the applicant was sentence.
The Written Case:
It is very important to realise what is involved in a written case. It is not a simple document and must include within a 10 page limit, amongst other things, the following:
a) Specify the conviction or sentence from which leave to appeal is sought.
b) In the case of an application for leave to appeal against sentence, identify the statutory maximum penalty and any other relevant statutory provisions.
c) Summarise the relevant facts.
d) Under the heading of each ground of appeal:
i) Outline argument and reference to each authority relied upon or sought to be distinguished.
ii) Identify each passage of transcript considered necessary to be taken into account.
This can be by reference to notes.
Prosecution Response To Appeal
Perfecting The Grounds
At a later point the written case can be amended once the transcripts have arrived. Obviously at the earlier stage the appeal will generally be running off Counsel’s and instructing solicitors notes of the hearing.
Transcripts and the Victorian Government Reporting Service (VGRS):
Counsel will not be provided with a transcript of the charge, plea or sentence before the written case is filed. On application to VGRS by filling out a form a copy of an audio file will be provided within 48 hours. Metropolitan Solicitors will pick the audio file up from VGRS in Lonsdale Street. The appeal is not a re-hearing of the facts of the matter.
The Court of appeal can do the following during an appeal hearing;
a) Allow the appeal. The Court may order a re-trial or an acquittal.
b) Dismiss the appeal.
The Court of Appeal also has power to dismiss the appeal even if there has been an irregularity in the trial. It does this if the Court of Appeal decides that there has been no substantial miscarriage of justice. This is often known as “applying the proviso”.