Criminal Appeals Act 2004

The Act’s reach is broad. Any “person who is aggrieved by a decision of a court of summary jurisdiction” (s. 7(1)) or an “offender” convicted on indictment or after summary conviction and committal for sentence (s. 23) may invoke its appeal provisions. “Offender” is defined in s. 22 for Part 3 and adopted by reference in Part 3A (s. 35C). Prosecutors, including the Attorney General, the DPP and certain other authorised officers (s. 46A(1)), enjoy specific rights of appeal or to seek leave to recharge an acquitted person.

Courts are directly affected. Magistrates, District Court judges and Supreme Court judges must be notified of appeals (s. 9(5), s. 42) and may be required to provide reports (s. 40(1)(h)). The Court of Appeal is the ultimate appellate body for most matters and is given extensive case-management and evidentiary powers. The Mental Impairment Review Tribunal receives memoranda when custody orders are varied or set aside (s. 41A).

Practitioners appear throughout. Lawyers’ incompetence can render evidence “fresh” for the purposes of a Part 3A appeal (s. 35D(1)(b)(ii)). Costs orders against police officers or justices of the peace are prohibited in most circumstances (s. 20), while the State must pay an accused’s reasonable costs of representation in certain prosecutorial appeals (s. 35A).

Victims are indirectly affected through the “interests of justice” test in s. 46K, which requires regard to the objective seriousness of the new charge. The broader community interest in finality versus correction of error is expressly balanced in the leave tests for second appeals and double-jeopardy retrials.

Persons subject to mental impairment orders are a distinct class. The Act was substantially amended by the Criminal Law (Mental Impairment) Act 2023 to insert references to limiting terms, custody orders, fitness findings and special proceedings. An accused or prosecutor may appeal against fitness decisions, findings under s. 41(2)(c) of that Act, Part 5 orders, or the setting of a limiting term (s. 25A).

Finally, acquitted persons are brought back into the criminal justice system under Part 5A. Once leave is granted, the usual rules against double jeopardy are disapplied (s. 46M(4)), the prior acquittal can be set aside if the new charge is essentially the same (s. 46M(5)), and publicity restrictions cease only when no further step can be taken or the new trial concludes (s. 46L(9)).

The Act is rights-heavy. An offender’s right to appeal conviction or sentence is expressly conferred (ss. 7, 23, 35E). The prosecutor’s rights are exhaustively listed and therefore narrower (ss. 24, 25, 25A, 26). Every ground of appeal requires leave, and the Court must refuse leave unless the ground has a reasonable prospect of succeeding (ss. 9, 27, 35F). This acts as a statutory filter.

Rights are qualified by procedural duties. An appeal must be commenced within 28 days from a summary court decision (s. 10(3)) or 21 days from a superior court decision or single-judge appeal decision (ss. 17(3), 28(3)). Extension is possible but not automatic. Service on other parties is mandatory (ss. 10(5), 28(5), 35G(3)).

The appeal court itself is under duties. It must decide appeals on the material before the lower court unless it admits fresh evidence under s. 40(1)(e) (s. 39(1)). When re-sentencing, it may take into account post-sentence changes in circumstances but must not consider the fact that it is re-sentencing (s. 41(4)). Memoranda of outcome must be sent to the lower court or Tribunal (ss. 41A, 42).

For Part 5A applications, authorised officers owe duties of reasonable diligence (s. 46K(3)(a)). The Court must not grant leave to recharge unless satisfied on the balance of probabilities that the evidence is fresh and compelling or the acquittal tainted and that charging is in the interests of justice (s. 46H(2)). The acquitted accused has a right to be heard (s. 46G(1)) and to reasonable notice before an ex parte hearing can occur (s. 46G(4)).

In mental impairment matters the Act creates rights to appeal fitness findings, s. 41(2)(c) findings, Part 5 orders and limiting terms (s. 25A), with the Court of Appeal empowered to substitute its own decision or remit with directions (s. 32A, s. 32B).

The Act also confers rights of presence. A self-represented appellant in custody is entitled to be present at all proceedings (s. 43(2)); a represented appellant is entitled only at the hearing itself unless the Court orders otherwise (s. 43(3)).

The Act creates few direct criminal offences. Section 45(5) makes it an offence, punishable by a $12 000 fine or 12 months’ imprisonment, to fail without reasonable excuse to comply with an undertaking given when an exhibit is released. Section 46L(10) provides that breach of the publicity restrictions in Part 5A is a contempt of the Supreme Court. Section 48(4) creates an offence of publishing identifying material about a referred question of law, with penalties of $12 000 or 12 months for individuals and $60 000 for corporations.

Costs are the more common sanction. A single judge or the Court of Appeal may order costs against an unsuccessful appellant in summary appeals (s. 14(1)(h), s. 19(2)(b)). In Part 3A, if leave is refused the Court may order the appellant to pay the other party’s costs, enforceable under the mechanism in s. 21 (s. 35J). Conversely, the Attorney General cannot be ordered to pay costs when appealing, though the Court may certify costs payable by the State in limited circumstances (s. 20). No party to a Part 3 appeal can be ordered to pay another’s costs (s. 35(2)).

Enforcement of substantive orders occurs through the ordinary machinery. A Supreme Court decision on a summary appeal “has effect as if it were the decision of the court of summary jurisdiction” (s. 15(1)) and can be enforced accordingly. Warrants issued by the Court of Appeal Registrar under ss. 33(4) or 34(2) authorise arrest. Sentences varied on appeal are enforced via amended warrants and memoranda sent to the Department of Justice (s. 41(6)–(9)).

The Act is expressly parasitic on the Criminal Procedure Act 2004 (s. 3). Terms not defined in the Appeals Act have the same meaning as in the Procedure Act unless contrary intention appears (s. 4(1)). Many appealable “decisions” are defined by reference to specific provisions of the Procedure Act (ss. 6, 24(2)(b)). The procedure for new trials ordered by the Court of Appeal is governed by s. 34 and cross-references the Procedure Act.

The Sentencing Act 1995 is engaged whenever an appeal concerns sentence. Suspension of sentences pending appeal (s. 11(5)), the effect of disqualification periods (s. 11(3)–(4)), and the Court’s re-sentencing powers (s. 41) all operate by reference to that Act. The Young Offenders Act 1994 is similarly incorporated for juvenile matters.

The Criminal Law (Mental Impairment) Act 2023 has been woven throughout. Amendments in 2023 inserted references to limiting terms, fitness to stand trial, s. 41(2)(c) findings, Part 5 orders, and custody orders (see ss. 4, 6, 11(6), 12(5A), 14(1)(ga)–(gb), 25, 25A, 30(5)(d)–(e), 32, 32A, 32B, 41A). The definition of “offence” in mental impairment contexts now includes findings under s. 41(2)(c) (s. 46A(3)).

The Bail Act 1982 governs release when sentences are suspended on appeal (s. 12(5)). The Fines, Penalties and Infringement Notices Enforcement Act 1994 limits the Supreme Court’s power to suspend fines (s. 12(6)).

The Evidence Act 1906 continues to apply to the competence and compellability of witnesses on appeal (s. 40(1)(d)). The Supreme Court Act 1935 supplies the definition of Court of Appeal Registrar and authorises rules of court (ss. 4(2), 50).

At a constitutional level, Part 5A contains express savings to ensure consistency with the Commonwealth Constitution and Commonwealth law when an interstate acquittal is involved (s. 46H(4)(c)).

Three tranches of amendments are particularly significant. The Criminal Law and Evidence Amendment Act 2008 refined procedural aspects and expanded prosecutorial appeal rights against certain acquittals. The Criminal Appeals Amendment (Double Jeopardy) Act 2012 inserted Part 5A to permit retrial after acquittal where fresh and compelling evidence emerges or the acquittal was tainted by an administration-of-justice offence. The explanatory memorandum for that Act cited high-profile cases where new DNA evidence emerged years later and argued that public confidence in the justice system required a narrow exception to the double-jeopardy rule. A mandatory review was required after five years (s. 52).

The Criminal Appeals Amendment Act 2022 inserted Part 3A, creating a right to a second or subsequent appeal against conviction on the basis of fresh or new compelling evidence. The test for “new” evidence is deliberately calibrated so that evidence that would have been fresh only because of lawyer incompetence is treated as fresh rather than new (s. 35D(3)). The provision was justified as responding to miscarriages of justice that only become apparent years later (e.g. through advances in forensic science or disclosure of previously withheld material). A further review after five years is mandated (s. 53).

The Criminal Law (Mental Impairment) Act 2023 made the most recent substantive changes, aligning the appeal regime with the new legislative scheme for accused persons with mental impairment. New appeal rights, new decision-making pathways (ss. 32A, 32B) and new terminology (limiting term, custody order) were inserted throughout. These changes reflect a policy decision to treat mental impairment findings as separately appealable rather than subsumed within ordinary conviction or acquittal appeals.

Because the Act is procedural, most litigation has concerned the interpretation of its leave thresholds and the scope of the “miscarriage of justice” ground. The Court of Appeal has repeatedly emphasised that leave will not be granted unless a ground has a reasonable prospect of success (s. 27(2)), a test described as “more than a mere possibility” but falling short of requiring that success is more likely than not.

The “substantial miscarriage of justice” proviso (appearing in ss. 14(2), 30(4), 32(5), 35H(3)) has generated voluminous case law. The Court has drawn on High Court authority to hold that an error that may have affected the outcome will ordinarily constitute a substantial miscarriage, but an error that could not have done so will not.

Part 5A has been controversial. Critics argued that exposing an acquitted person to a second trial after many years breaches fundamental common-law protections. The Court of Appeal has nevertheless upheld the constitutional validity of the provisions, noting the stringent leave filter and the interests-of-justice test. In practice, successful applications under Part 5A have been rare, consistent with the legislative intention that the power be exercised only in exceptional cases.

Part 3A second-appeal litigation is still emerging. Early decisions have focused on the meaning of “fresh” evidence when the failure to adduce it at trial is said to have been caused by counsel’s incompetence. The Court has required clear evidence of such incompetence before the evidence can be characterised as fresh.

Controversy also surrounds the interaction between appeal rights and mental impairment orders. The 2023 amendments were designed to resolve earlier uncertainties about whether a finding under the predecessor Criminal Law (Insanity) Act was appealable as a conviction or acquittal. The new standalone rights in s. 25A have largely eliminated that debate, but questions remain about the standard of appellate review of clinical opinions.

Most practitioners underestimate the strictness of the leave test. Section 27(2) and its analogues are not a mere formality; the Court of Appeal routinely dismisses applications at the leave stage without full argument. An application that fails to demonstrate a reasonable prospect on its face will be dismissed under s. 27(3).

The time limits are unforgiving. Although extension is possible, courts expect compelling explanation for delay, particularly where the appellant has been legally represented. The 28-day period for summary appeals runs from the date of sentence if conviction and sentence are not pronounced on the same day (s. 10(4)), a trap for the unwary.

Part 3A’s distinction between “fresh” and “new” evidence is counter-intuitive. Evidence that could have been obtained with reasonable diligence is “new” and can only succeed if it proves actual innocence on the balance of probabilities (s. 35H(4)). Only truly fresh evidence (or evidence rendered fresh by lawyer incompetence) can succeed on the lower “miscarriage of justice” threshold. Many second-appeal applications founder on this distinction.

In Part 5A applications, the “interests of justice” test in s. 46K is not a general discretion. The Court must have regard to the length of time since the original trial and to whether investigators or prosecutors failed to act with reasonable diligence. A prosecutor who has sat on new DNA evidence for years may find the application refused even if the evidence is compelling.

The costs protection in s. 35(2) for Part 3 appeals does not extend to Part 2 or Part 3A. An unsuccessful summary appellant or a Part 3A applicant refused leave can face an adverse costs order enforceable as a judgment debt (s. 21, s. 35J(3)).

Finally, the interaction between appeal rights and mental impairment orders is still bedding down. Section 41A requires the Court to send a memorandum to the Mental Impairment Review Tribunal, yet the precise effect on existing limiting terms is not always clear. Practitioners should obtain specific advice before assuming that a successful appeal automatically discharges a custody order.

Compliance begins with meticulous identification of the correct Part. An appeal from a magistrate after committal for sentence must proceed under Part 3, not Part 2 (s. 5). A second appeal must satisfy the exacting definitions in s. 35D before leave can be sought.

Drafting grounds is critical. Each ground must be separately particularised. Vague assertions of “miscarriage of justice” will not survive the leave filter. Where fresh evidence is relied upon, a formal application supported by affidavits explaining why the evidence is fresh, new or compelling must accompany the leave application.

Time limits must be diarised. If a notice of appeal cannot be filed within time, an application for extension should be filed and served concurrently, with evidence explaining the delay.

For prosecutors contemplating a Part 5A application, an authorised officer must first authorise any further investigation (s. 46C). The leave application itself may be made ex parte (s. 46E(5)), but once a summons issues the acquitted person must be served and given an opportunity to be heard (s. 46G(1)).

When appearing before the Court of Appeal, counsel should be ready to address the “substantial miscarriage of justice” proviso even if error is conceded. The Court will often raise it of its own motion.

In mental impairment appeals, ensure that the precise power under s. 32A or s. 32B is identified and that any proposed orders are framed by reference to the Criminal Law (Mental Impairment) Act 2023. A memorandum to the Tribunal will be required if a custody order is affected (s. 41A(3)).

Finally, keep Part 4 powers in mind. If the existing record is inadequate, consider an application under s. 40 for further evidence, a commissioner’s report, or an assessor. Such applications must be made promptly; late requests risk being refused on case-management grounds.

By treating the Act as an integrated code rather than a collection of isolated sections, and by paying close attention to the interlocking definitions and leave filters, practitioners can navigate its complexities and maximise the prospects of appellate relief or successful resistance.