Guidelines and Directions Manual
Appeals
Last Updated: February 2014
Contents
1.
Criteria for Appeal ........................................................................................................................... 2
2.
Time Limitations for Appeals .......................................................................................................... 2
3.
•
Appeals from Superior Courts................................................................................................. 2
•
Appeals from Summary Courts ............................................................................................... 3
•
Extensions of Time for Appeals............................................................................................... 3
•
Appeals from Proceeds of Crime Act 2002 and Customs Act 1901 and Civil Remedies Cases 4
Who May Appeal............................................................................................................................. 4
•
Appeals against bail ................................................................................................................ 4
•
Other interlocutory appeals.................................................................................................... 4
•
Appeals against final decisions ............................................................................................... 4
•
Protective Appeals .................................................................................................................. 5
•
Who Will Sign Notice of Appeal .............................................................................................. 5
4.
Notice of Appeal / Grounds of Appeal ............................................................................................ 6
5.
Retaining counsel for prosecution or defence appeals .................................................................. 6
6.
Costs in Reference Appeals ............................................................................................................. 7
7.
Double Jeopardy ............................................................................................................................. 7
Prosecutors must pay attention to what is said when sentence is passed and give timely
consideration to whether an appeal is called for.
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Appeals
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1.
Criteria for Appeal
Note that the principle expressed in Malvaso v The Queen (1989) 168 CLR 227 that prosecution
appeals “should be rare” is no longer a determinative factor in the decision to appeal. The
complexity of sentencing laws has increased to the point that error is not uncommon and the
prosecution discretion to appeal cannot be fettered or regarded as unreasonable simply because
there are now many more prosecution appeals. For a discussion of the current position see the
decision of the NSW Court of Criminal Appeal in R v JW (2010) 77 NSWLR 7, in particular the
judgement of Spigelman CJ.
2.
Time Limitations for Appeals
•
Appeals from Superior Courts
In those jurisdictions where a statutory time limit applies the CDPP must comply with the time limit.
In New South Wales, there is no statutory time limit for Crown appeals (R v Porter (1953) SR (NSW)
97; R v Burnett, Gow and Shine NSWCCA, unreported 20 May 1998). However, it is CDPP policy that
Crown appeals should be lodged within one month, although in certain circumstances appeals can
be lodged outside that time limit. Notwithstanding any formal time-limit, delay can be the basis of
an adverse response, even one resulting in failure of the appeal.
In the Northern Territory, there is no statutory deadline for prosecution appeals. However, defence
appeals must be lodged within 28 days and, accordingly, the CDPP policy is to lodge prosecution
appeals within 28 days. Note: there is no requirement, nor is it the practice, in the NT to notify the
defendant where an appeal is under consideration.
The following time limits currently apply to appeals from decisions of intermediate/superior courts
(but may change if State legislation is altered):
State
Time
Provision/comments
High Court 28 days
For special leave, see Part 41.02.1 High Court Rules 2004
ACT
28 days
r5103(d) ACT Court Procedure Rules 2006
NSW
1 month Time limit is CDPP policy (see above) but Crown is to notify offender as soon
as possible (see Practice Note No. SC CCA 1 (v.2)).
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NT
28 days
QLD
1 month s671 of the Criminal Code (Qld)
SA
21 days
r4A Supreme Court Criminal Appeal Rules 1996
TAS
14 days
See s407 of the Criminal Code Act 1924 (Tas)
VIC
28 days
S 287 and 288 Criminal Procedure Act 2009
WA
21 days
s28(3) Criminal Appeals Act 2004
•
Time limit is CDPP policy
Appeals from Summary Courts
As noted above, in those jurisdictions where a statutory time limit applies the CDPP must comply
with the time limit.
The following time limits currently apply to appeals from decisions of courts of summary jurisdiction
(but may change if State legislation is altered):
State Time
Provision/comments
ACT
28 days
s209(1) Magistrates Court Act 1936
NSW
28 days
ss23 and 56 Crimes (Appeal and Review) Act 2001
NT
28 days
s171(2) of Justices Act provides for 1 month but r83.04 of the Supreme Court rules
provides for 28 days (CDPP policy is 28 days)
QLD
1 month s222 of the Justices Act 1889 and District Court Practice Direction 5 of 2001.
SA
21 days
r281 Supreme Court Civil Rules 2006
TAS
21 days
S107 Justices Act 1959
VIC
28 days
s 257 and 258 Criminal Procedure Act 2009
WA
28 days
s10(3) Criminal Appeals Act 2004
•
Extensions of Time for Appeals
Regional offices must seek the Director's approval for seeking an extension of time in which to
appeal.
That approval will not be given without cogent reasons. A delay in obtaining the transcript of
sentencing remarks is normally not a sufficient reason.
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Appeals from Proceeds of Crime Act 2002 and Customs Act 1901 and Civil Remedies Cases
A regional office should refer to the Director any proposal to appeal from a decision made in:
o
o
o
3.
proceedings being conducted by the CDPP under the Proceeds of Crime Act 2002;
proceedings under Division 3 of Part XIII of the Customs Act 1901; and
civil remedies matters where the CDPP wants to direct that an appeal be made.
Who May Appeal
•
Appeals against bail
The decision to appeal a decision to grant bail can be made by the Deputy Director and they may
sign the notice of appeal. A report on the matter must be sent to Head Office as soon as possible.
However, if the matter is politically sensitive, contentious or a matter which the Director has
indicated he should be consulted on, the decision should be referred to the Director.
If it is not practicable to refer a proposed appeal to the Director, an appeal may be instituted by an
authorised person at Regional Office level in accordance with the procedure for protective appeals
set out below.
•
Other interlocutory appeals
As a general rule, appeals from interlocutory decisions should be rare, so as to avoid the
fragmentation of the criminal process where ever possible.
The decision to appeal an interlocutory decision can be made by the Deputy Director where:
o
o
The decision goes against a settled national position/policy of the Office; and
Head office has been advised on the intention to appeal and has not recommended
that the matter be referred to the Director for decision.
All other interlocutory appeals should be referred to the Director for decision.
•
Appeals against final decisions
All proposed appeals against final decisions must be referred to the Director.
If it is not practicable to refer a proposed appeal to the Director, an appeal may be instituted by an
authorised person at Regional Office level in accordance with the procedure for protective appeals
set out below, but a report on the matter must be sent to Head Office as soon as possible.
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Appeals
Protective Appeals
An authorised person at Regional Office level may institute a protective appeal if there is insufficient
time to refer the matter to the Director.
The Director has delegated the power under s9(7) of the DPP Act to institute an appeal to all SES
Band 1, 2 and 3 officers who are legal practitioners.
Deputy Directors and the Senior Assistant Directors Hobart, Darwin and Canberra:
•
may exercise the power, if there is insufficient time to refer the matter to the Director;
•
may sign a notice of appeal as delegate; and
•
must provide a report to Head Office as soon as possible.
•
Who Will Sign Notice of Appeal
Where the Director makes the decision to appeal, the Director will generally also sign the notice of
appeal so that it is clear on the face of the notice that the decision to appeal has been made at the
highest level within the CDPP.
Where there is a protective appeal, the notice of appeal can be signed by the Deputy Director or
Senior Assistant Director who instituted the appeal.
If it is not practical for the Director to sign a notice of appeal, it may be signed by an authorised
person at Regional Office level i.e. SES Band 1, Band 1 (Specialist), Band 2 and Band 3 officers who
are legal practitioners.
Note: In Victoria, s567A(2) of the Crimes Act 1958 provides that the Director of Public Prosecutions
shall sign notices of appeal personally. Rohde's Case (1986) 66 ALR 593 establishes that this
requirement does not apply in Commonwealth matters. However, as a matter of comity, the
Director will sign all notices of appeal for Victorian matters unless that is impossible.
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4.
Guidelines and Directions Manual
Appeals
Notice of Appeal / Grounds of Appeal
Care must be taken in the drafting of a Notice of Appeal, particularly as to the Grounds of Appeal.
On 21 April 2009, the High Court held in Carroll v R (2009) 254 ALR 379:
“The Director’s allegation in his notice of appeal to the Court of Criminal Appeal,
that the sentence passed was “manifestly inadequate”, was an allegation of this
kind of error [i.e. last category of case indentified in House v The King]. It was
not an allegation that the primary judge had acted upon a wrong principle,
allowed extraneous or irrelevant matters to guide or affect her, had mistaken
the facts or had not taken into account some material consideration. If a case of
specific error of any of those grounds was to be made it would have been
necessary to identify the asserted error in the grounds of appeal. [Emphasis
added]”
5.
Retaining counsel for prosecution or defence appeals
It should not be automatic that counsel appearing at first instance be retained to advise or appear
on appeals.
Close consideration needs to be given to the following factors in determining the retention of
appropriate counsel:
•
whether the grounds of appeal or the history of the matter in the proceedings under appeal
raise any significant issues about the conduct of counsel at first instance
─ judicial criticism
of counsel’s conduct, as opposed to adverse rulings on evidentiary grounds alone, are always
to be regarded as a significant issue;
•
whether the issues that are likely to arise on the appeal would benefit from a fresh
assessment or perspective by retaining fresh counsel;
•
whether the likely appeal issues warrant Senior Counsel appearing at the appeal;
•
whether the grounds of appeal raise issues that would warrant counsel with broader
appellate experience than that of the counsel at first instance. It should be noted that
counsel other than Senior Counsel may lead counsel more junior to them in seniority at the
bar; and
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whether there is an overall efficiency and cost advantage in retaining counsel at first
instance for the appeal given the grounds of appeal and the issues that are likely to arise for
determination
─ this needs to b
other relevant considerations and must not displace proper consideration of factors that
suggest that fresh counsel should be briefed.
In cases where the grounds of appeal or the history of the matter raise any issues about the conduct
of counsel the retention of counsel on appeal is to be referred to the Deputy Director or Assistant
Director for a decision.
The retention of counsel on appeals is a matter for the CDPP. However, it will sometimes be
appropriate to obtain the views of the investigating agency, particularly in sensitive cases or those
related to specialist areas, such as commercial prosecutions.
In settling the above guideline it was recognised that in the robust atmosphere of a trial or in
contested sentence proceedings it is not unknown for spurious or trivial aspersions to be cast on the
conduct of prosecution counsel. Issues assessed as spurious or trivial will not be permitted to
displace counsel at first instance who is otherwise an appropriate choice to appear on the appeal.
This will be a difficult reality, particularly where counsel one knows and respects has been subjected
to criticism which one considers unfair. However, the prospect that counsel will be put in the
position of defending or his or her professional integrity or reputation should not be permitted to
distract from the proper representation of the interests of the Commonwealth
6.
Costs in Reference Appeals
Except as otherwise expressly agreed, the CDPP instituting a reference appeal is responsible for all
costs and expenses incurred in connection with the appeal.
7.
Double Jeopardy
A number of states (Victoria 1,Tasmania 2, Western Australia 3, South Australia 4 and New South
Wales 5) have enacted legislation that prevents appellate Courts from considering the element of
double jeopardy when re-sentencing. Whether or not the State provisions relating to double
1
s 289(2) Criminal Procedure Act 2009 (Vic).
s 402(4A) Criminal Code (Tas).
3 26 s 41(4)(b) Criminal Appeals Act 2004 (WA).
4 Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA).
5 s68A Crimes (Appeal and Review) Act 2000 (NSW).
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jeopardy apply to appeals against sentence for Commonwealth offence via the Judiciary Act 1903
has been considered in the following cases.
In Bui v DPP (Cth) (2012) 284 ALR 445; (Bui v DPP (Cth) [2012] HCA 1) the High Court considered
whether an appellate Court re-sentencing a Commonwealth offender had to resort to the Victorian
double jeopardy provision, s289(2) of the Criminal Procedure Act 2009 (Vic). In holding that it did
not, the Court observed that where an appellate Court is re-sentencing an offender for a
Commonwealth offence, there is no scope under s16A of the Crimes Act for the appellate Court to
have regard to presumed anxiety or distress on the part of the offender in relation to re-sentencing
and therefore re-sentencing can occur without reference to such a presumed state of affairs (at
[28]). In the context of the case this meant that there was no need for the appellate Court to resort
to s289(2) when re-sentencing the Commonwealth offender ([29]).
However, the High Court did not discount the possibility that proved anxiety or distress on the part
of an offender facing re-sentence on appeal (as opposed to presumed anxiety or distress) could be a
relevant sentencing factor in the appropriate case because of the reference to the “mental
condition” of the offender as a matter to take into account when relevant in s16(2)(m) of the Crimes
Act (at [22]-[24], referring to DPP v De Le Rosa (2010) 79 NSWLR 1.
Prior to Bui, the NSW CCA considered the NSW double jeopardy provision in DPP v De La Rosa (2010)
79 NSWLR 1. The Court found:
1. The NSW double jeopardy provision, s68A of the Crimes (Appeal and Review) Act 2001
(NSW), applies to appeals against sentence for Commonwealth offences via the
application of s68, s79 and s80 of the Judiciary Act.
2. Section 16A of the Crimes Act and s68A of the Crimes (Appeal and Review) Act 2001
(NSW) are not inconsistent for the purposes of s109 of the Constitution as s68A does
not operate of its own force to apply to sentencing for Commonwealth criminal
offences.
3. Both s68A of the Crimes (Appeal and Review) Act 2001 (NSW) and s16A(2)(m) of the
Crimes Act apply to Commonwealth appeals against sentence. Section 68A operates to
preclude a court from relying on the presumption that an offender will suffer anxiety
and distress due to an appeal, and s16A(2)(m) allows a court to consider evidence of a
defendant’s actual anxiety and distress in re-sentencing on appeal.
Further, prior to both Bui and De La Rosa the Tasmanian Supreme Court decided in R v Talbot [2009]
TASSC 107 that the amendment to the Criminal Code (Tas), prohibiting the court from taking into
account the fact that the court’s decision may mean that the person is again sentenced for the
crime, did not apply in Commonwealth matters. It decided this on the basis that this state provision
was inconsistent with the obligation imposed on the court by s16A(1) of the Crimes Act to impose a
sentence “that is of appropriate severity in all the circumstances of the offence”.
Like the various State provisions, Bui’s case, for the purposes of Commonwealth sentencing,
removes from consideration the objective fact of being re-sentenced after appeal but an appellate
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Court’s capacity to consider the subjective circumstances of an offender at the time he or she comes
to be resentences remains unfettered.
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