Skip Ribbon Commands
Skip to main content

Content

Main Page Content

Appeals

Explanation of the Appeal Process


It is a function of the Director of Public Prosecutions to:

 
(i)        institute and conduct, or conduct as respondent, any appeal or further appeal relating to prosecutions upon indictment in the Supreme Court;
 
(ii)       request and conduct a reference to the Court of Criminal Appeal under section 414(2) of the Criminal Code; and
 
(iii)    institute and conduct, or conduct as respondent, any appeal or further appeal relating to prosecutions not on indictment for indictable offences, including the summary trial of indictable offences.
 
Some explanation of these functions is required. 
 
As to (i), pursuant to s.414(1)(c) of the Criminal Code, the Director may appeal to the Court of Criminal Appeal against any sentence imposed by the Supreme Court following prosecution upon indictment. The Director is not required to obtain the leave of the Court to appeal against sentence. The appeal lies as of right. The Director cannot appeal against a jury verdict of not guilty.
 
By way of contrast, a person found guilty on indictment in the Supreme Court may appeal to the Court of Criminal Appeal:
 
·         against the finding of guilt on any ground that involves a question of law alone;
 
·         with the leave of the Court, against the finding of guilt, on any ground that involves a question of fact alone or a question of mixed fact and law; and
 
·         with the leave of the Court, against the sentence passed on the finding of guilt.
 
Although the Court of Criminal Appeal is the Supreme Court constituted by not less than three judges and/or an uneven number of judges, the Criminal Code provides that certain powers of the Court of Criminal Appeal can be exercised by a single judge. Relevantly, a single judge is permitted to grant leave to appeal and to extend the time in which to give notice of appeal or notice of application for leave to appeal.[1]
 
An appeal against conviction on the ground that the verdict is unsafe and unsatisfactory or that the verdict is unreasonable or cannot be supported having regard to the evidence, involves the Court of Criminal Appeal in deciding a question of fact. Accordingly, leave to appeal is required.
 
 
 
 
Certain applications to be determined on the papers
 
The procedure governing applications for leave to appeal and applications for an extension of time is contained in the Supreme Court Rules.[1] These are the most common applications made to the Court. The Rules were amended in May 2000 and now provide that these applications are to be determined by a single judge upon written submissions filed by the parties and without hearing oral submissions, i.e., the applications are determined on the papers. The Rules provide that a party is not entitled to make oral submissions in relation to these applications although the judge may hear oral submissions if he or she thinks it necessary to do so. This rarely happens. A judge who determines an application on the papers, is not required to give reasons for his or her decision.
 
In the event of a single judge refusing all or part of an application on the papers, the unsuccessful applicant is entitled to have the application(s) re-heard and determined by the Court constituted by three judges.[2] If the unsuccessful applicant does not apply to have the application(s) determined by the Court constituted by three judges, the refusal by the single judge is final.
 
The purpose of the application for leave to appeal is to weed out the obvious cases where it is plain that the appeal cannot succeed. In order to obtain leave, the applicant must show that there is an arguable case that the sentencing discretion reposed on the trial judge has miscarried or that there is a real possibility that the applicant might suffer injustice by the refusal. The argument must be sufficiently strong to call for a response. 
 
If the application for leave to appeal is successful, the appeal is then heard and determined in open court by the Court constituted (normally) by three judges. A re-hearing of an unsuccessful application for leave to appeal by the Court of Criminal Appeal, constituted by three judges, is heard by the Court as if it were an appeal.
 
Table A in the Report contains the results of applications for leave to appeal determined on the papers by a single judge during the reporting period.
As to (ii), the Director may, in a case where a person has been acquitted after his trial on indictment in the Supreme Court, refer any point of law that has arisen at the trial to the Court of Criminal Appeal for its consideration and opinion thereon. Although the acquitted person is entitled to make submissions to the Court, the opinion of the Court upon the reference cannot affect the trial in respect of which the reference was made or any acquittal in that trial.
As to (iii), pursuant to s.163(1) of the Justices Act, both the Director and the offender may appeal to the Supreme Court against any sentence imposed by the Court of Summary Jurisdiction following conviction for a minor indictable offence. A person found guilty of having committed a minor indictable offence in the Court of

 
 
Summary Jurisdiction may appeal to the Supreme Court against that finding of guilt. Leave to appeal is not necessary. The appeal lies as of right. In September 2001, s.163(3) of the Justices Act was amended to give the prosecution a right of appeal from an order or adjudication of the Court of Summary Jurisdiction dismissing a charge of a minor indictable offence. Leave to appeal is not necessary. The appeal lies as of right.
 
A judge of the Supreme Court hearing an appeal from the Court of Summary Jurisdiction may refer the whole or part of that proceeding to the Full Court of the Supreme Court for determination. 
 
An unsuccessful appellant to the Supreme Court may appeal the decision of that court to the Court of Appeal. Leave to appeal is not necessary. The appeal lies as of right. The prosecution, as of right, can appeal against an order of the Supreme Court quashing the finding of guilt made by the Court of Summary Jurisdiction and the Court of Appeal is empowered to quash the order of the Supreme Court and reinstate the conviction recorded in the Court of Summary Jurisdiction.
 
The Court of Criminal Appeal, the Court of Appeal and the Full Court are each constituted by not less than three judges of the Supreme Court.   
 
Tables B in this report summarises the results of appeals from the Supreme Court to the Court of Criminal Appeal, Court of Appeal and Full Court during the reporting period.
 
Table C in this report summarises the results of appeals from the Court of Summary Jurisdiction to the Supreme Court decided during the reporting period.
 
Prosecution appeals against inadequacy of sentence
 
The Director’s Guidelines, which deal with appeals against inadequacy of sentence, remind prosecutors that appellate courts have long maintained that prosecution appeals should be a rarity, instituted for the purposes of enabling the courts to maintain adequate standards of punishment, to correct idiosyncratic views of individual judges as to particular crimes or classes of crime, and to remedy those sentences which are so disproportionate to the seriousness of the offence as to shock the public conscience.[1]
 
In 2000, the High Court of Australia in Dinsdale v The Queen[2] affirmed the proper role of prosecution appeals against sentence in the following terms:
 
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender.  When first introduced, Crown appeals were considered to cut across "time-honoured concepts" of the administration of criminal justice in common law legal systems.  For this reason, it has sometimes been said that, as a "matter of principle", such appeals should be a comparative rarity.  The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced.  The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains.  The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate "tinkering" with sentences.
 
The convention referred to in the underlined passage is commonly referred to as double jeopardy. The nature of double jeopardy was addressed in the Northern Territory case of R v Tait[3] where the Court (Brennan, Deane and Gallop JJ) observed:
 
Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction of his sentence. Crown appeals have been described as cutting across "time-honoured concepts of criminal administration". A Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal". The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court. (References omitted)
 
In 2011, s.414(1)(c) of the Criminal Code, which gives the Director of Public Prosecutions the right to appeal against any sentence imposed by the Supreme Court following prosecution upon indictment was amended by the Criminal Law Amendment (Sentencing Appeals) Act 2011[4] by the insertion of s.414(1A) which provides:
 
(1A) In exercising its discretion on an appeal made under subsection (1)(c) involving a sentence imposed after the commencement of this subsection, the Court must not take into account any element of double jeopardy involving the respondent being sentenced again when deciding whether to do either or both of the following:
 
(a)       allow the appeal;
 
(b)       impose another sentence.
 
Section 414(1A) was considered by the Court of Criminal Appeal in R v Wilson[5] where the Court, after opining that the expression ‘double jeopardy’ in s.414(1A) of the Criminal Code means the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject,[6] went on to hold that s.414(1A) of the Criminal Code has the following effect upon Crown appeals in the Northern Territory:
 
(a)     The section removes any need for the Court of Criminal Appeal to give consideration to ensuring that Crown appeals are "rare and exceptional". Responsibility in that regard rests with the Director of Public Prosecutions.
 
(b)     The Court must not take into account any element of double jeopardy involving the respondent being sentenced again when deciding whether or not to allow a Crown appeal.
 
(c)     The Court must not take into account any element of double jeopardy involving the respondent being sentenced again when deciding whether to impose another sentence.
 
(d)     The Court must not reduce the sentence which it otherwise believes to be appropriate on the basis of double jeopardy arising from the respondent being sentenced again.
 
(e)     Apart from double jeopardy considerations, the Court retains a residual discretion to determine that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed or a reduced sentence should be imposed.
 
(f)      Factors that may be relevant to the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.[7]
 


[1] Guideline 17.5(1)
[2] 202 CLR 321 at paragraph 62 per Kirby J
[3] (1979) 46 FLR 386 at 388
[4] The Act commenced on 27 April 2011
[5] [2011] NTCCA 9, 30 NTLR 51
[6] At paragraph [26]
[7] At paragraph [27]
[8] [2011] NTCCA 9, 30 NTLR 51
[9] At paragraph [26]
[10] At paragraph [27]