Part 6AAppeals

Part 6A—Appeals Division 1—Appeal against sentence 150—Appeal against sentence Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must— (a) impose the sentence that should have been imposed in the first instance; and (b) order that the sentence— (i) will be taken to have come into effect on a date before the date of the order; or (ii) will take effect on a date on or after the date of the order. Division 2—Other appeals 151—Interpretation In this Part, unless inconsistent with the context or subject matter— ancillary order means— (a) an intervention order or restraining order issued under the sentencing law; or (b) an order for the restitution of property under the sentencing law; or (c) an order for compensation under the sentencing law, made by the District Court, or by the Supreme Court in the exercise of its criminal jurisdiction at first instance; appellant includes a person who has been convicted and desires to appeal under this Act; conviction in relation to a case where a court finds a person guilty of an offence but does not record a conviction, includes the formal finding of guilt; court means the Supreme Court or the District Court; issue antecedent to trial means a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court; judge means a judge of the Supreme Court or the District Court; sentence includes any order of the court of trial or of the judge of such court made on, or in connection with, a conviction with reference to the convicted person, or any property, or with reference to any moneys to be paid by the person, and also includes an order under the sentencing law discharging the convicted person, without imposing a penalty, on the person entering into a bond. 152—Court to decide according to opinion of majority The determination of any question before the Court of Appeal under this Act will be according to the opinion of the majority of the members of the Court hearing the case. 153—Reservation of relevant questions (1) In this section— relevant question means a question of law and includes a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised. (2) A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Court of Appeal a relevant question on an issue— (a) antecedent to trial; or (b) relevant to the trial or sentencing of the defendant, and the court may (if necessary) stay the proceedings until the question has been determined by the Court of Appeal. (3) Unless required to do so by the Court of Appeal, a court must not reserve a question for consideration and determination by the Court of Appeal if reservation of the question would unduly delay the trial or sentencing of the defendant. (4) A court before which a person has been tried and acquitted of an offence must, on application by the Attorney-General or the Director of Public Prosecutions, reserve a question antecedent to the trial, or arising in the course of the trial, for consideration and determination by the Court of Appeal. (5) The Court of Appeal may, on application under subsection (6), require a court to refer a relevant question to it for consideration and determination. (6) An application for an order under subsection (5) may be made by— (a) the Attorney-General or the Director of Public Prosecutions; or (b) a person who— (i) has applied unsuccessfully to the primary court to have the question referred for consideration and determination by the Court of Appeal; and (ii) has obtained the permission of the primary court or the Supreme Court to make the application. (7) If a person is convicted, and a question relevant to the trial or sentencing is reserved for consideration and determination by the Court of Appeal, the primary court or the Supreme Court may release the person on bail on conditions the court considers appropriate. 154—Case to be stated by trial judge (1) When a court reserves a question for consideration and determination of the Court of Appeal, the presiding judge must state a case setting out— (a) the question reserved; and (b) the circumstances out of which the reservation arises; and (c) any findings of fact necessary for the proper determination of the question reserved. (2) The Court of Appeal may, if it thinks necessary, refer the stated case back for amendment. 155—Powers of Court of Appeal on reservation of question (1) The Court of Appeal may determine a question reserved under this Part and make consequential orders and directions. Examples— The Court of Appeal might, for example, quash an information or a count of an information or stay proceedings on an information or a count of an information if it decides that prosecution of the charge is an abuse of process. The Court of Appeal might, for example, set aside a conviction and order a new trial. (2) However— (a) a conviction must not be set aside on the ground of the improper admission of evidence if— (i) the evidence is merely of a formal character and not material to the conviction; or (ii) the evidence is adduced for the defence; and (b) a conviction need not be set aside if the Court of Appeal is satisfied that, even though the question reserved should be decided in favour of the defendant, no miscarriage of justice has actually occurred; and (c) if the defendant has been acquitted by the court of trial, no determination or order of the Court of Appeal can invalidate or otherwise affect the acquittal. 156—Costs (1) If a question is reserved on application by the Attorney‑General or the Director of Public Prosecutions on an acquittal, the Crown is liable to pay the adjudicated costs of the defendant in proceedings for the reservation and determination of the question. (2) If the defendant does not appear in the proceedings, the Crown must instruct counsel to present argument to the Court that might have been presented by counsel for the defendant. 157—Right of appeal in criminal cases (1) Appeals lie to the Court of Appeal as follows: (a) if a person is convicted on information— (i) the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone; (ii) the convicted person may appeal against the conviction on any other ground with the permission of the Court of Appeal or on the certificate of the court of trial that it is a fit case for appeal; (iii) subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Court of Appeal; (b) if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Court of Appeal, appeal against the acquittal on any ground— (i) if the trial was by judge alone; or (ii) if the trial was by jury and the judge directed the jury to acquit the person; (c) if a court makes a decision on an issue antecedent to trial that is adverse to the prosecution, the Director of Public Prosecutions may appeal against the decision— (i) as of right, on any ground that involves a question of law alone; or (ii) on any other ground with the permission of the Court of Appeal; (d) if a court makes a decision on an issue antecedent to trial that is adverse to the defendant— (i) the defendant may appeal against the decision before the commencement or completion of the trial with the permission of the court of trial (but permission will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial); (ii) the defendant may, if convicted, appeal against the conviction under paragraph (a) asserting as a ground of appeal that the decision was wrong; (e) subject to subsection (3), the Director of Public Prosecutions may, with the permission of the Full Court, appeal against an interlocutory judgment. (2) If a convicted person is granted permission to appeal under subsection (1)(a)(iii), the Director of Public Prosecutions may appeal under that subparagraph without the need to obtain the permission of the Court of Appeal. (3) The Full Court may only grant permission for an appeal under subsection (1)(e) if satisfied that— (a) the interlocutory judgment destroys or substantially weakens the prosecution case in respect of any charge and, if correct, is likely to lead to abandonment of that charge; or (b) it is otherwise in the interests of justice to do so. 158—Determination of appeals in ordinary cases (1) The Court of Appeal, on any such appeal against conviction, will only allow the appeal if it thinks that— (a) the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or (b) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or (c) on any ground there was a miscarriage of justice. (2) The Court of Appeal may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (3) Subject to the special provisions of this Act, the Court of Appeal will, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial. (4) On an appeal against acquittal brought by the Director of Public Prosecutions, the Court of Appeal may exercise any 1 or more of the following powers: (a) it may dismiss the appeal; (b) it may allow the appeal, quash the acquittal and order a new trial; (c) it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances. (5) If the Court of Appeal orders a new trial under subsection (4)(b), the Court— (a) may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but (b) may not make any order directing the court that is to retry the person on the charge to convict or sentence the person. (6) If an appeal is brought against a decision on an issue antecedent to trial, the Court of Appeal may exercise any one or more of the following powers: (a) it may revoke any permission to appeal granted by the court of trial; (b) it may confirm, vary or reverse the decision subject to the appeal; (c) it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances. (7) Subject to subsection (8), on an appeal against sentence, the Court of Appeal must— (a) if it thinks that the sentence is affected by error such that the defendant should be re‑sentenced— (i) quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or (ii) quash the sentence passed at the trial and remit the matter to the court of trial for re‑sentencing; or (b) in any other case—dismiss the appeal. (8) The Court of Appeal must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence. 159—Second or subsequent appeals (1) The Court of Appeal may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. (2) A convicted person may only appeal under this section with the permission of the Court of Appeal. (3) The Court of Appeal may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice. (4) If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial. (5) If the Court of Appeal orders a new trial under subsection (4), the Court— (a) may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but (b) may not make any order directing the court that is to retry the person on the charge to convict or sentence the person. (6) For the purposes of subsection (1), evidence relating to an offence is— (a) fresh if— (i) it was not adduced at the trial of the offence; and (ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and (b) compelling if— (i) it is reliable; and (ii) it is substantial; and (iii) it is highly probative in the context of the issues in dispute at the trial of the offence. (7) Evidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction. 160—Powers of Court in special cases (1) If it appears to the Court of Appeal that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such other sentence in substitution or as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted. (2) Where an appellant has been convicted of an offence and the jury could, on the information, have found the appellant guilty of some other offence and, on the finding of the jury, it appears to the Court of Appeal that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity. (3) Where on the conviction of the appellant the jury has found a special verdict and the Court of Appeal considers that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Court of Appeal may, instead of allowing the appeal, order such conclusion to be recorded as appears to the Court to be in law required by the verdict and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law. 161—Right of appeal against ancillary orders (1) A person against whom an ancillary order has been made may, in accordance with rules of court, appeal to the Court of Appeal against that order. (2) The Attorney-General may, in accordance with rules of court, appeal to the Court of Appeal against an ancillary order or a decision not to make an ancillary order. (3) An appeal under this section (whether relating to civil or criminal proceedings) may, if appropriate, be heard together with an appeal against sentence and may be brought as part of such an appeal. (4) If an appeal against sentence and an appeal against an ancillary order are brought separately the Supreme Court may direct that they be heard together. 162—Revesting and restitution of property on conviction (1) The operation of any order for the restitution of any property to any person, or with reference to any property or the payment of money, made on, or in connection with, a conviction on information and the operation, in case of any such conviction, of the provisions of section 24(1) of the Sale of Goods Act 1895 as to the revesting of the property in stolen goods on conviction will (unless the court before which the conviction takes place directs to the contrary in any case in which in its opinion the title to the property is not in dispute) be suspended— (a) in any case, until the expiration of 10 days after the date of the conviction; and (b) in cases where notice of appeal or permission to appeal is given within 10 days after the date of conviction—until the determination of the appeal, and, in cases where the operation of any such order or provisions is suspended until the determination of the appeal, the order or provisions (as the case may be) will not take effect as to the property in question if the conviction is quashed on appeal, except by the special order of the Court of Appeal. (2) Provision may be made by rules of court for securing the safe custody of any property pending the suspension of the operation of any such order or provisions. (3) The Court of Appeal may, by order, annul or vary, or refuse to annul or vary, any order made on, or in connection with, a conviction for the restitution of any property to any person, or with reference to any property or the payment of money, whether the conviction or sentence is or is not quashed (and the order, if annulled, will not take effect and, if varied, will take effect as so varied). 163—Jurisdiction of Court of Appeal All jurisdiction and authority under any other Act in relation to questions of law arising in criminal trials which are vested in the judges of the Supreme Court or the Court of Appeal Division of the Supreme Court as constituted by the Supreme Court Act 1935 is vested in the Court of Appeal for the purposes of this Act. 164—Enforcement of orders Where a conviction or order has been affirmed, amended or made on appeal to the Court of Appeal under this Part, the District Court has the same authority to enforce that conviction or order as if it had not been appealed against or had been made in the first instance. 165—Appeal to Court of Appeal (1) An appeal to the Court of Appeal, or an application for permission to appeal to the Court of Appeal under this Act, must be made in accordance with the appropriate rules of court. (2) The Court of Appeal may (either before or after the time allowed by the rules has expired) extend the time for making such an appeal or application. 166—Supplemental powers of Court For the purposes of this Act, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice— (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case; and (b) order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Supreme Court or before any officer of the Supreme Court or justice of the peace or other person appointed by the Court of Appeal for the purpose, and allow the admission of any statements so taken as evidence before the Court of Appeal; and (c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness; and (d) where any question arising on the appeal involves prolonged examination of documents or accounts or any scientific or local investigation which cannot, in the opinion of the Court of Appeal, conveniently be conducted before the Court, order the reference of the question in the manner provided by rules of court for inquiry and report to a special commissioner appointed by the Court and act on the report of any such commissioner so far as it thinks fit to adopt it; and (e) appoint any person with special expert knowledge to act as assessor to the Court of Appeal in any case where it appears to the Court that such special knowledge is required for the proper determination of the case; and (f) exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters; and (g) issue any warrants necessary for enforcing the orders or sentences of the Court, but in no case will any sentence be increased by reason of, or in consideration of, any evidence that was not given at the trial. 167—Presence of appellant or respondent on hearing of appeal (1) The Supreme Court may make rules with respect to the presence in court of an appellant or respondent who is in custody during— (a) the hearing of the appeal; or (b) the hearing of an application for permission to appeal; or (c) any proceedings preliminary or incidental to an appeal. (2) Without limiting subsection (1), the rules of court may (for example)— (a) provide that the appellant or respondent may be present during the hearing of an appeal or an application for permission to appeal, or a proceeding preliminary or incidental to an appeal— (i) in person; or (ii) by means of an audio visual link; or (iii) by means of an audio link; and (b) provide that the appellant or respondent may not be present during any such hearing or proceeding. (3) Despite any rule to the contrary, the Court of Appeal may, if the Court considers there is good reason to do so, proceed with the hearing of an appeal or an application for permission to appeal, or a proceeding preliminary or incidental to an appeal, in the absence of the appellant or respondent. (4) In this section— audio link means a system of 2‑way communication linking different places so that a person speaking at any 1 of the places can be heard at the other; audio visual link means a system of 2‑way communication linking different places so that a person speaking at any 1 of the places can be seen and heard at the other. 168—Director of Public Prosecutions to be represented The Director of Public Prosecutions, or counsel on behalf of the Director, will appear for the Crown on every appeal to the Court of Appeal under this Act (unless a private prosecutor in the case of a private prosecution undertakes the defence of the appeal) and provision must be made by rules of court for the transmission to the Director of all such documents, exhibits and other things connected with the proceedings as the Director may require for the purposes of carrying out duties under this section. 169—Costs of appeal On the hearing and determination of an appeal or new trial or any proceedings preliminary or incidental thereto under this Act, no costs will be allowed on either side. 170—Admission of appellant to bail and custody when attending Court (1) An appellant who is not admitted to bail must, pending the determination of his appeal, be treated in such manner as may be directed by or under the Acts regulating prisons. (2) The Court of Appeal may, if it thinks fit, on the application of an appellant, admit the appellant to bail pending the determination of the appeal or, where a new trial is directed, until the commencement of the new trial. (3) The time during which an appellant, pending the determination of the appeal or pending a new trial, is admitted to bail under this section will not count as part of any term of imprisonment under the appellant's sentence and any imprisonment of the appellant (whether under the sentence passed by the court of trial or the sentence passed by the Court of Appeal) will, subject to any directions of the Court of Appeal, be deemed to be resumed or to begin to run, as the case requires— (a) if the appellant is in custody—as from the day on which the appeal is determined; or (b) if the appellant is not in custody—as from the day on which the appellant is received into prison under the sentence. (4) Where a question of law is reserved under this Part, this section applies to the person in relation to whose conviction the question is reserved as it applies to an appellant. 171—Duties of registrar with respect to notices of appeal etc (1) The registrar must take all necessary steps for obtaining a hearing under this Act of any appeals or applications, notice of which is given to the registrar under this Act, and must obtain and lay before the Court of Appeal in proper form all documents, exhibits and other things relating to the proceedings in the court before which the appellant or applicant was tried which appear necessary for the proper determination of the appeal or application. (2) If it appears to the registrar that any notice of an appeal against a conviction does not show any substantial ground of appeal, the registrar may refer the appeal to the Court of Appeal for summary determination and, where the case is so referred, the Court may, if it considers that the appeal is frivolous or vexatious and can be determined without adjourning it for a full hearing, dismiss the appeal summarily without calling on any persons to attend the hearing or to appear for the Crown. (3) Any documents, exhibits or other things connected with the trial of any person on information must be kept in the custody of the court of trial, in accordance with rules of court made for the purpose, for such time as may be provided by the rules and subject to such power as may be given by the rules for the conditional release of any such documents, exhibits or things from that custody. (4) The registrar must furnish the necessary forms and instructions in relation to notices of appeal or notices of application under this Act to any person who demands them and to officers of courts, keepers of gaols and such other officers or persons as the registrar thinks fit, and the keeper of a gaol must cause those forms and instructions to be placed at the disposal of prisoners desiring to appeal or to make any application under this Act and must cause any such notice given by such prisoners to be forwarded on behalf of the prisoner to the registrar. 172—Notes of evidence on trial (1) On any appeal, or application for permission to appeal, a transcript of the notes of the judge of the court of trial, or, where shorthand notes have been taken by direction of the judge, a transcript of the notes or any part thereof, must be made, if the registrar so requests, and be furnished— (a) to the registrar for the use of the Court of Appeal or any judge of the Court of Appeal; and (b) to any interested party on the payment of such charges as the Attorney‑General may fix. (2) The Attorney‑General or Director of Public Prosecutions may also request a transcript of the notes to be made and furnished to the Attorney‑General or Director of Public Prosecutions (as the case may be). (3) The cost of making any such transcript, where a transcript is requested to be made by the registrar, Attorney‑General or Director of Public Prosecutions, will be defrayed in accordance with scales of payment fixed for the time being by the Attorney‑General out of moneys provided by Parliament for the purpose. (4) Rules of court may make such provision as is necessary for the verification of the transcript. Division 3—References on petitions for mercy 173—References by Attorney-General (1) Nothing in this Part affects the prerogative of mercy but the Attorney‑General, on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of a person on information or to the sentence passed on a person so convicted, may, if the Attorney‑General thinks fit, at any time, either— (a) refer the whole case to the Court of Appeal, and the case must then be heard and determined by that Court as in the case of an appeal by a person convicted; or (b) refer any point arising in the case to those judges for their opinion and those judges, or any 3 of them, must consider the point so referred and furnish the Attorney‑General with their opinion accordingly. (2) If a full pardon is granted to a convicted person in the exercise of Her Majesty's mercy in relation to a conviction of an offence, the Attorney‑General may refer the matter to the Court of Appeal and the Court of Appeal may, if it thinks fit, quash the conviction.