20 June 2014

NSW Crim Law Appeals

The NSW Attorney-General has released the 328 page report [PDF] by the NSW Law Reform Commission regarding Criminal Appeals.

The Commission was asked to review the avenues of appeal in all criminal matters, with a view to simplifying and streamlining appeal provisions and consolidating them into a single Act.

Two principal Acts govern criminal appeals in NSW: the Criminal Appeal Act 1912 (NSW) (CAA, typically appeals from the higher courts to the Court of Criminal Appeal) and the Crimes (Appeal and Review) Act 2001 (NSW) (CARA, appeals from the Local Court), with judicial review  also available in some criminal proceedings under the Supreme Court Act 1970 (NSW) (SCA).

The report notes that
the limits of each Act are not well defined, and in some cases there is overlap. The CCA sits at the top of the criminal appeals hierarchy in NSW, although anomalously some criminal appeals currently lie to the Court of Appeal.
Criminal appeal provisions have been amended over the last century in a piecemeal manner, without fundamental review. This has resulted in a criminal appeals system which is at times complicated, inconsistent and outdated. We aim to update, simplify and streamline the criminal appeal provisions where possible.
The Commission recommends establishment of  a new Criminal Appeal Act -
Having two separate Acts creates a criminal appeals framework that is disjointed and complicated. Consolidating the CAA and CARA into a single Act will improve efficiency, clarity and accessibility. We recommend that the CAA and CARA be abolished and replaced with a single, new Criminal Appeal Act. (Recommendation 4.1)
Two aims of our terms of reference are to simplify and streamline appeal processes. To this end, we considered whether the criminal appeal provisions could be consistent across all courts in NSW. Ultimately, however, we have concluded that the differences between the courts mean that separate regimes of appeal remain practically unavoidable.
The CCA is constituted under the CAA. In contrast, the Court of Appeal and the Divisions of the Supreme Court are provided for under the SCA. This difference seems to be an historical anomaly. We recommend that the CCA be recognised in the SCA as a part of the Supreme Court. (Recommendation 4.2)
Judicial review from decisions in criminal matters currently lies to the Court of Appeal. Although this may be because the CCA is not formally a part of the Supreme Court, it means that both the CCA and the Court of Appeal have jurisdiction over criminal matters. If the CCA becomes a part of the Supreme Court, we also recommend that it should be assigned to hear judicial review applications arising out of criminal proceedings. (Recommendation 4.3)
The report discusses  appeals from the Local Court to the District Court
A conviction or sentence imposed in the Local Court may be appealed to the District Court. Only a small proportion of Local Court convictions and sentences are appealed, although in sentence appeals the success rate is quite high – on average about 60%.
The provision for conviction appeals works well and we do not recommend any change. However, sentence appeals are problematic in that the District Court exercises the sentencing discretion afresh, and may impose a different sentence on appeal even if the original sentence was within the range of acceptable options. It also does not usually have access to the Local Court’s remarks on sentence or any exchange between the magistrate and the bar table, and does not know why the Local Court chose a particular sentence over others.
In our view the current basis for determining sentence appeals does not assist with clarity or consistency in sentencing practice, or in promoting finality in criminal proceedings.
Ideally sentence appeals from the Local Court to the District Court should require error in order to succeed. However, the less formal nature of proceedings in the Local Court – necessary due to the high volume of cases and time pressures – means that an error based appeal is likely to be impractical. We instead recommend that appeals against sentence be by way of rehearing, on the basis of the material that was before the Local Court and the reasons of the magistrate. Fresh evidence should only be given by leave where it is in the interests of justice. (Recommendation 5.1)
The resources required for transcript production are a significant constraint in the hearing of appeals from the Local Court. We recommend that the Department of Attorney General and Justice investigate alternatives to the production of typed transcript in these appeals. (Recommendation 5.1)
In an appeal from the Local Court, the District Court judge may state a case on a question of law to the CCA. The case stated is an outdated and cumbersome method of reviewing a matter. We recommend that it be abolished and replaced with an avenue of appeal with leave on a ground involving a question of law. (Recommendation 5.2)
In relation to  appeals from the Local Court to the Supreme Court the Commission notes that
Appeal also lies to the Supreme Court from certain Local Court decisions. Although there are few such appeals, they play an important role in allowing the Supreme Court to determine questions of law authoritatively.
We recommend that the current avenues of appeal to the Supreme Court be retained, except that the ability to appeal against conviction or sentence on a question of fact or mixed fact and law should be removed. An appeal to the District Court can adequately deal with these factual questions. (Recommendation 6.1)
Where the Supreme Court hears an appeal from the Local Court, a further appeal lies to the Court of Appeal with leave. We recommend that this be abolished and replaced with an avenue of appeal to the CCA. (Recommendation 6.2) The CCA should have jurisdiction over all criminal appeals. Appeals from the Local Court – other issues (Chapter 7)
The Local Court, on application by either the prosecutor or defendant, can annul a conviction or sentence. We make some recommendations to increase the flexibility of this power, while at the same time balancing the need for finality. (Recommendations 7.1, 7.2, 7.3 and 7.4)
There is an established requirement in case law that a Parker direction must be given where a District Court judge is contemplating increasing a defendant’s sentence on appeal. We recommend including the requirement for a Parker direction in legislation. (Recommendation 7.5)
The District Court has limited powers in an appeal against conviction, and this has caused some problems in practice. We recommend that it be given some additional powers. (Recommendation 7.6)
A defendant cannot appeal to the District Court more than 3 months after the conviction or sentence. This can cause injustice, and we recommend that the District Court be able to grant leave to file an appeal more than 3 months after the conviction or sentence where exceptional circumstances are made out. We also recommend consistent time limits for appeals by defendants and the Director of Public Prosecutions (DPP). (Recommendation 7.7) The time limit for appealing to the Supreme Court is currently contained in procedural rules. We recommend it be moved into legislation. (Recommendation 7.8)
Where a forensic procedures order under the Crimes (Forensic Procedures) Act 2000 (NSW) is made, the order may be appealed to the Supreme Court as if it were a sentence. This is inconsistent with the avenues of appeal given to other decisions of the Local Court. We recommend that a forensic procedures order be subject to the same avenues of appeal and review as a conviction. (Recommendation 7.12)
There are no comprehensive procedural rules that apply to criminal appeals from the Local Court to the Supreme Court. This results in a gap in procedure, and criminal appeals have sometimes been treated as being subject to the Uniform Civil  Procedure Rules 2005 (NSW). We recommend that specific procedural rules, forms and fees be developed. (Recommendation 7.13)
We also recommend that particular provisions be clarified, including the award of costs, the effect of a sentence pending appeal and the power to deal with a good behaviour bond imposed on appeal. (Recommendations 7.9, 7.10, 7.11, 7.14 and 7.15)
In relation to appeals from conviction and sentence on indictment the Commission comments
 The grounds for an appeal against conviction on indictment have remained unchanged since their introduction in 1912. The wording of the provision is antiquated and its structure is unwieldy. The provision uses an outdated drafting style that is difficult to follow and apply. Judicial interpretation has not comprehensively clarified how the three grounds of appeal and the accompanying proviso should be applied. We conclude that there is scope for improving the provision.
Stakeholders agreed that the grounds for appeal against conviction should be reformed. We developed seven different options for reform, based on alternatives in other jurisdictions and suggestions arising from our consultations. These options were put to stakeholders.
We recommend a new formulation for the grounds of appeal against conviction. (Recommendation 8.1) Having considered the wide range of options, we recommend a formulation of the grounds for appeal against conviction that adopts the best features of those models with the most stakeholder support, and that provides a simple and clear framework.
In appeals against sentence for proceedings on indictment by the defendant and the Crown, the CCA is given a broad discretion in the legislation to impose any different sentence it thinks fit. However, the case law establishes that an error or miscarriage of justice must be demonstrated before the appeal can succeed.
We recommend retaining the current legislative provisions. (Recommendations 8.2 and 8.3) Stakeholders did not support codifying the case law as it risks constraining the discretion of the CCA and inadvertently restricting the grounds of appeal.
In discussing appeals from acquittal and similar orders the Commission recommends that where a defendant is acquitted in a judge alone trial for proceedings on indictment, the appeal should be available on questions of both law and fact, not just on a question of law. (Recommendation 9.1)
 In a judge alone trial the judge is required to give reasons, which include the findings of fact relied upon – something not available in a jury trial. Factual and legal errors can be discerned from the judge’s reasons. We expect this avenue of appeal will be rarely used. However, where there is a clearly identifiable error, community confidence in the criminal justice system is better served by having a method to  review and correct those errors. Consistent with this policy position the appeal should be decided on the ground that there was an error of law or fact that was material to the outcome. (Recommendation 9.1)
We recommend, by majority, that this expanded basis of appeal be available only where the offence for which the defendant was acquitted is punishable by 15 years imprisonment or more. (Recommendation 9.1) This is consistent with the threshold that applies to an order for a retrial under CARA where there has been a “tainted acquittal”.
We recommend expanding the avenue of appeal from an acquittal in the summary jurisdiction of the higher courts. (Recommendations 9.2 and 9.3)
No appeal lies from a decision of a judge to accept a plea in bar – a plea that the defendant has been convicted or acquitted of the same offence. The acceptance of the plea operates to discharge the defendant. We recommend that the DPP be able to appeal the acceptance of a plea in bar to the CCA. (Recommendation 9.4)
A person found not guilty by reason of mental illness may only appeal that verdict where he or she did not set up the defence. We reiterate the recommendations made in Report 138 that an appeal should be available regardless of who set up the defence. We also recommend that where a defendant is acquitted at a special hearing, the same avenues of appeal for an acquittal in an ordinary trial for proceedings dealt with on indictment should apply. (Recommendation 9.5)
Regarding other aspects of  appeals from higher courts the Commission indicates that
The legislation does not specify the basis on which a conviction or sentence appeal from the summary jurisdiction of the higher courts is to be decided. The CCA has held that these appeals should be decided the same way as appeals from proceedings dealt with on indictment. For clarity, we recommend including this basis in legislation. (Recommendation 10.1)
Most defendant appeals to the CCA require leave. In a conviction appeal, whether or not leave is required depends on whether the ground raises a question of law alone, a difficult classification. For simplicity, and to give the CCA greater control over the cases that come before it, we recommend that all appeals to the CCA should require leave. (Recommendation 10.2) We also recommend repealing r 4 of the Criminal Appeal Rules (NSW) and including its substance in legislation as one factor the CCA must consider in deciding whether to grant leave. (Recommendation 10.3). The ability for the trial judge to certify that a matter is appropriate for appeal is unnecessary and should be abolished. (Recommendation 10.4)
We recommend shortening the time limit for filing a notice of appeal with the CCA from 6 months to 4 months, in order to better serve the interests of finality. We also recommend that the Chief Justice develop a practice note for granting extensions of the notice of intention to appeal. Extensions of time are sometimes sought due to delays in obtaining transcripts and other material from the trial court, and we recommend that the head of each jurisdiction conduct a review of the processes for the release of this material. (Recommendation 10.5) For consistency we recommend that, except in certain cases, prosecution appeals be subject to the same time limits as those that apply to defendants. (Recommendation 10.6)
In certain proceedings the trial judge may submit a question of law arising during or after the hearing for determination by the CCA .The current avenues of appeal and our recommendations for change make this power unnecessary. We recommend that it be repealed. (Recommendation 10.9)
We also recommend clarifying and updating other parts of the appeals process, including the powers of the CCA following disposal of a conviction appeal, costs, supplemental powers and the effect of time spent on release pending a sentence appeal. (Recommendations 10.7, 10.8, 10.10, 10.11, 10.12 and 10.13)
Dealing with  Interlocutory appeals and appeals from committal proceedings the Commission states that
The current interlocutory appeal rights work well. We recommend retaining them in their current form and expanding them to apply to the summary jurisdiction of all higher courts. (Recommendation 11.1) We also make some recommendations to update and streamline these provisions, including by imposing a time limit and a requirement for leave for all parties. (Recommendations 11.2, 11.3 and 11.4)
There are currently two alternate avenues of appeal from an interlocutory order made in committal proceedings – to the CCA under the CAA, and to a single judge of the Supreme Court under CARA. We consider that dual avenues are unnecessary. We recommend abolishing the appeal to the CCA. (Recommendation 11.5)
In relation to  appeals to and from specialist courts the Commission states
 The Land and Environment Court (LEC) hears appeals from the Local Court relating to environmental offences. Although only a small number of appeals are made to the LEC each year, we recommend retaining this avenue of appeal. (Recommendation 12.1) There are benefits in having a specialist court deal with environmental offences. We recommend some changes to align appeals to the LEC with appeals to the District Court and Supreme Court. (Recommendations 12.2, 12.3 and 12.4)
Appeals relating to environmental offences may be made from the Local Court to the Supreme Court if the threshold for granting leave is met. We recommend this be retained. (Recommendation 12.5) 0.46 The Industrial Relations Commission in Court Session (IRCiCS) hears appeals from the Local Court for certain work health and safety offences. The provisions of CARA will apply. We do not make any specific recommendations for this avenue of appeal.
In an appeal from the Local Court to both the LEC and the IRCiCS, the judge hearing the appeal may state a case on a question of law to the CCA. Similar to our  recommendation for the case stated from the District Court, we recommend abolishing these provisions and replacing them with an avenue of appeal with leave on a ground involving a question of law. (Recommendations 12.6 and 12.10)
The provisions of CARA relating to criminal appeals from the Local Court apply to the Children’s Court. These avenues of appeal work well and we recommend retaining them. (Recommendation 12.7)
Appeals from decisions of the President of the Children’s Court lie to the Supreme Court instead of the District Court. This appears to be because the President must be a judge of the District Court. However, this creates an unnecessary anomaly and means a young person’s right of appeal can be different because the matter happens to be heard by a different judicial officer. We recommend that the President’s decisions be subject to the same avenues of criminal appeal as Children’s Court magistrates. (Recommendation 12.8)
Certain decisions of the Drug Court may be appealed to the CCA. These work well and we recommend that they be retained. (Recommendation 12.9)
Most prosecution appeals may be made only by the DPP or the Attorney General. The Environment Protection Authority (EPA) and the WorkCover Authority of NSW are specialist prosecutors. We recommend that they have the same criminal appeal rights as the DPP where they prosecuted the original proceedings. We also recommend that the EPA be given appeal rights for environmental offences where the original proceedings were prosecuted by or on behalf of a public authority. (Recommendation 12.11)
Highlighting other areas for reform the Commission notes
The Criminal Appeal Rules (NSW) apply to appeals to the CCA, and the Supreme Court Rules 1970 (NSW) govern criminal appeals from the Local Court to the Supreme Court. There is no clear rationale for having separate sets of rules. We recommend that the Supreme Court Rules Committee conduct a review of these rules with a view to consolidating and updating them. (Recommendation 13.1)
The Supreme Court Rules Committee makes rules for a number of different types of proceedings. We recommend that consideration be given to ensuring that criminal law expertise is available to the Committee when making criminal appeal rules. (Recommendation 13.1)
In criminal appeals from the Local Court to the Supreme Court it is not uncommon for there to be an application for judicial review in the alternative. However, there are some inconsistencies between the provisions applying to appeals and those that apply to judicial review. We recommend that the Attorney General instigate a review of the provisions of the SCA and other rules relating to judicial review, with a view to harmonising those provisions with similar provisions applying in criminal appeals. (Recommendation 13.2)