Court of Appeal – Appeal Against Conviction by Jury

1. There are 28 days in which to file a notice of application for leave to appeal. The application for leave to appeal is the starting point of the appeal against conviction.

An appeal against conviction takes a different path from an appeal against sentence.

The initial grounds of appeal are often called “holding grounds”. They they will be fairly wide because the grounds have not all been worked out at this stage. That is the usual position and people are not punished for filing expanded grounds at a later stage.

2. If the appeal is not filed within time then an application for an extension of time to file an appeal against conviction may be granted [see section 313 Criminal Procedure Act 2009] by the Registrar of Criminal Appeals. An affidavit needs to be filed explaining in detail why the application for leave to appeal was not filed in time.

3. The Notice of application to appeal should be served on the Office of Public Prosecutions (usually) or other Prosecuting Agency involved. The Act provides[s 275 (2) of Criminal Procedure Act 2009] that the Registrar must provide a copy to the OPP but it good practice to make sure you serve it on the Office of Public Prosecutions as well.

4. After Notice of Appeal is lodged there is generally quite a wait for the provision of trial transcript from the Court of Appeal Registry. This is generally due to the volume of transcripts that are being transcribed and is just part of the system. It is not something that is the fault of the Court of Appeal or the Court of Appeal Registry who are very helpful and try to get matters on as soon as they can. Unfortunately a lack of Judges and resources means that the appeal process is a very slow one.

Generally the Barrister who ran the trial should have a copy of most of the transcript. This is important to get as a starting point to see if there are good appeal points.

5. This is the point at which your appeal lawyers should be reading all the hand-up brief and other material that needs to be scrutinised. There should be discussions with the appellant as to what they think went wrong in the trial process. Barristers should be briefed and given the information that they need to have some idea of the issues.

It is normal to use different Barristers to the ones who did the trial. The reason for this is that is hard to be objective about something you have done yourself.

It is important that all this work is done before the transcripts arrive as the timelines start getting closer.

6. Once the Court of Appeal Registry has provided all necessary transcripts a period of 1 month is generally allowed for the filing of the Full Statement of Grounds.

That period of time may be extended by the Registrar depending on the complexity of the matter. That is if there is a huge amount of transcript that the lawyers have to read then extra time would be given.

7. A full statement of grounds should be filed and served on the Crown.

8. The applicant must file Outline of submissions, list of authorities and unreported authorities within one month of filing statement of grounds.

9. The Crown’s Outline of submissions, list of authorities and unreported authorities must be filed within one month of filing applicants submissions.

10. The applicant may file a further reply within 14 days if necessary.

11. The appeal is then set down for hearing before a Court of Three Justices of Appeal. They have read the submissions and the law in relation to the appeal and so often the debate turns out to be quite short on the day of the appeal. They will often focus in on one particular point because it is the only one that they think has some merit.

The appeal is not a re-hearing of the facts of the matter.

12. 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”.

We are extremely experienced Appeals Lawyers. We have a great deal of experience in handling complex Court of Appeal appeals. If you need advice or representation in an appeal phone us today.