Appeal from the CC to COA Flashcards
(10 cards)
who can use this appeal route and when?
D can appeal against sentence or conviction with permission.
what is the procedure for obtaining permission?
Trial sentencing judge can give certificate or can obtain permission from COA (latter more common)
obtaining permission from the COA:
o Must sent NOA & draft grounds within 28 days of conviction/sentence depending on what is being appealed to Registrar of COA.
o R obtains transcript of evidence + judge’s summing up.
o Judge grants permission on papers.
o Will also grant funding if permission given.
o If the appeal is completely without merit - possible direction for loss of time.
what is the effect of a direction for loss of time? when can this be given?
if D renews application and COA agrees with initial judge the time spent in custody will not count towards time spent.
can be given when D is seeking permission but also by the full court at appeal if without merit/vexatious.
when the conviction is being appealed, what evidence is at the hearing?
previous oral evidence + new credible evidence which would’ve been admissible before if there was a reasonable excuse for failure to provide at trial
what are the grounds for appealing the conviction?
that the conviction is ‘unsafe’
the COA must dismiss appeal unless unsafe
give some examples of when a conviction might be unsafe
o Judge failed to correctly direct jury i.e. SOP, turnbull warning, poor summary
o Judge wrongfully admitted or excluded evidence
o Innapropriate interventions by trial judge
when the conviction is being appealed, what are the possible outcomes?
o Quash;
o Allow part of the appeal and dismiss another;
o Substitute guilty verdict for another offence;
o Order re-trial (if it is in the interests of justice)
CoA cannot increase sentence imposed by judge in CC
when the sentence is being appealed, what is considered at the hearing?
Confined to legal submissions on sentence
what are the grounds for appealing the sentence?
o Wrong (i.e. law, principle, approach); or
o Excessive (i.e. above upper range for limit)
when the sentence is being appealed, what are the possible outcomes?
o Quash;
o Replace sentence (cannot be higher than what previous judge could order)
