Criminal Appeals - WA

A person who is aggrieved by a decision of the Magistrates Court of Western Australia (WA) may appeal to the Supreme Court, constituted by a single judge, against the decision – s7 Criminal Appeals Act 2004 (WA) (“Appeals Act”).

Decisions that can be appealed include:

• A decision ordering a permanent stay of a prosecution;
• A decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
• A decision to acquit an accused of a charge;
• A decision to acquit an accused on account of unsoundness of mind (insanity);
• A sentence imposed;
• A refusal to make an order as a result of a conviction or acquittal;
• A decision as to costs.

a. Error of law

i. This includes the incorrect application of the legislation by the Court such as:

1. 1. Misdirection or misapplication on a point of law;
   2. Wrongfully excluding relevant evidence; or
   3. Wrongfully admitted irrelevant evidence.

b. Error of fact

i. This includes an error in the assessing the evidence including:

1. 1. Making findings of fact that are not supported by any evidence;
   2. Giving weight or failing to give weight to pieces of evidence and facts.

c. Impose a sentence that was inadequate or excessive.

d. Miscarriage of justice:

i. A court may set aside a decision whenever it appears unjust or unsafe to allow the decision to stand (see Hofer v R (2021) 274 CLR 351 [110] noting Davies and Cody v R (1937) 57 CLR 170 at 180). This includes where a person has been denied an interpreter, the right to procedural fairness, the right to legal advice or the failure to make an order.

e. The Magistrates Court acted without, or in excess of its, jurisdiction.

Each ground of appeal must be granted “leave to appeal”.  To be granted leave to appeal, the Supreme Court needs to be satisfied the ground/s have reasonable prospects of succeeding. If “leave to appeal” is refused, then that ground/s is taken to be dismissed.

An appeal from the Magistrates Court must be commenced within 28 days after the date of the decision unless ordered otherwise. The time for appeal of a conviction and/or sentence starts from the date of sentencing (s10 Appeals Act).

On commencing an appeal, the appellant must serve a copy of the application for leave to appeal on the other party. In the case of a prosecution commenced by a police officer, the respondent to the appeal is that individual police officer (see Tey v Plotz [2010] WASC 163 [19]) .

In deciding an appeal, the Supreme Court may do one or more of the following:

a. Dismiss the appeal;

b. Allow the appeal;

c. Set aside or vary the decision of the Magistrates Court and sentence imposed, order made, or thing done as a result of the decision;

d. Substitute a decision that should have been made by the Magistrates Court;

e. Order the case to be dealt with again by the Court with or without orders to that court:

i. As to how or by whom it is to be constituted;

ii. As to how it must deal with the case;

f. Make an order as to the costs of the appeal and the costs of the proceedings in the Magistrates Court;

g. Make an order that the appeal be dealt with by the Court of Appeal (s13 Appeals Act);

h. Make any other order it sees fit.

A person who is aggrieved by a decision made in the appeal by a single judge of the Supreme Court that refuses to extend the time to commence an appeal, refuses leave to appeal, or dismisses or decides an appeal, may appeal to the Court of Appeal against the decision. An appeal of the decision by the single judge must be commenced within 21 days of the decision unless ordered otherwise.

When commencing an appeal the appellant must file a Form 1 – Appeal Notice (Rule 28(1) Supreme Court (Court of Appeal) Rules 2005 (WA) (“SC Rules”)).

If an appeal requires an application for an extension of time, the Form 1 must be filed with a supporting affidavit explaining why the appeal was not commenced within time (r28(2) SC Rules).

All documents filed to commence an appeal must be served on the respondent personally and a Form 3 (Service Certificate) needs to be filed with the Court (r29A SC Rules).

The respondent, after being served with an appeal notice, must file within 7 days a Form 4 – Notice of Respondent’s Intention. Failure to do so may mean that the respondent is not entitled to receive or be served with any document filed, unless ordered otherwise, and not entitled to take part or be heard in the appeal and is not a party to the appeal (r31 SC Rules). The respondent may also apply to cross appeal (r31A SC Rules).

After filing an appeal notice, the appellant must file the Appellant’s case within 56 days after the day on which the appeal notice is filed, unless ordered otherwise (r3B SC Rules). An appellant’s case for an appeal is to include (r31(3) SC Rules):

a. Appellant’s grounds of appeal;

b. Appellant’s submissions;

c. Appellant’s legal authorities;

d. Orders wanted;

e. Draft chronology (Appeal against convictions only);

f. Draft Appeal Book indexes.

The Appellant’s grounds of appeal must contain all the grounds of appeal which the appellant intends to rely at hearing, the grounds and particulars of the appeal, and where applicable identify if the error alleged is an error of fact, law or mixture (r32(4) SC Rules).

The grounds must also identify by reference to the specific part of the original court’s decision or must state the basis on which the miscarriage of justice is alleged to arise (r32(4) SC Rules).

For each ground of appeal, the appellant’s written submissions, also known as the argument, must convey the substance of the argument set out in numbered paragraph and include references to the exhibits, transcript, legal authority relied upon, and new or fresh compelling evidence relied upon (r32(5) SC Rules).

The Appellant’s legal authorities must be numbered and listed under headings in the following order:

• Written laws;
• Judgements;
• Legal Texts.

Any legal authority from which it is intended to read any text to the Court of Appeal must be marked with an asterisk (r32(6) SC Rules). The written law listed must include its short title, jurisdiction and each relevant section or provision of it (r32(6)(c) SC Rules). Any judgment listed must include its medium neutral citation and any relevant paragraph and its reported citation with the paragraph or page that is relevant (r32(6)(d) SC Rules).

The orders wanted must set out the orders that the appellant wants the Court of Appeal to make, and if applicable the guidelines that it is proposed the court should give (r 32(7) SC Rules).

The draft chronology document must state succinctly in paragraphs arranged in date order, the date and facts of each event that is material to the appeal (r 32(8) SC Rules).

An appeal book contains the documents required for the hearing of the appeal and is required for every appeal except if the Court of Appeal orders the application for leave to appeal is to be heard by itself (r 35 SC Rules). The draft appeal book indexes must set out for each of the 3 parts of the appeal book a draft index of the proposed contents of the relevant part (r 32(9) SC Rules).

The registrar will settle the indexes as soon as practicable and will make the appropriate orders to the parties to prepare and settle a final bound copy of the appeal books.

The respondent answer must be filed 21 days after being served with the appellant’s case (r33 SC Rules). Should the respondent seek to uphold the primary court’s decision in an appeal against conviction on a ground not relied on by the primary court, they must file a respondent’s notice of contention (r33(4)(c)(iii), (7) SC Rules).

An appellant who is served the respondent’s notice of contention must file an Appellant’s reply to respondent’s notice of contention within 21 days of being served. In that reply, it must either concede the allegation in the ground or set out submissions made in relation to that ground, reference the necessary materials and each legal authority relied upon (r43 SC Rules).

An appeal book must be comprised of 3 separate parts (r38(1) SC Rules):

1. White Appeal Book with white covers;
2. Blue Appeal Book with light blue covers;
3. Green Appeal Book with light green covers.

The appeal books must be prepared by the appellant, prepare as many copies of the appeal book as ordered and ensure that the appeal book is filed with a Certificate of correctness (r41 SC Rules).

The White Appeal Book must contain (r38(2) SC Rules):

a. A cover page;

b. An index with page numbers of the book’s contents;

c. The appeal notice;

d. Any notice of the respondent’s intention;

e. Any notice of cross appeal by the respondent;

f. Any order extending time within which to appeal;

g. Any order giving leave to appeal;

h. The Appellant’s Case except for the draft chronology and draft indexes;

i. The Respondents Answer except for the draft reply to the chronology and draft indexes;

j. The Chronology if required and as agreed to by the parties (or both parties draft chronologies);

k. Any affidavits filed with the appeal notice;

l. The signed Certificate of Correctness of appeal book;

m. Any other documents filed that a registrar orders.

The Blue Appeal Book must contain (r38(3) SC Rules):

a. A cover page;

b. An index with page numbers of the book’s contents;

c. The primary court’s formal decision;

d. The primary court’s written reasons for its decision, if any;

e. The prosecution notice or indictment, as the case requires;

f. Any other document filed in the primary court that a registrar orders to be included.

The Green Appeal Book must contain (r38(4) SC Rules):

a. A cover page;

b. An index with page numbers of the book’s contents;

c. The parts of the primary court’s transcript that are referred to specifically in the Appellant’s case, Respondent’s answer or notice or reply to contention;

d. A copy of documentary exhibits that are referred to specifically in the Appellant’s case, Respondent’s answer or notice or reply to contention in the primary court in order in which they are lettered or numbered as exhibits in the primary court;

e. The accused’s antecedent report and criminal record as provided to the primary court;

f. Any other document containing evidence considered by the primary court when making its decision that a registrar orders to be includes.

The Green Appeal Book must not contain a pre-sentence report or a victim impact statement or a confidential medical report (r38(6) SC Rules).

For an appeal book in an appeal against a sentence, there is only the requirement for one Appeal Book.

It is required to be in one volume, with only one cover page for the appeal book, a consolidated index and the pages must be numbered consecutively.

The appeal book must have white covers and be titled Appeal Book.

A yellow appeal book is often used for evidence to which a party applies to adduce.

On being instructed to act for a party, a legal practitioner must file a Form 5 as soon as practicable (r23 SC Rules).

Any document that is filed must (r 1(1) SC Rules):

a. Use durable white A4 paper;

b. Have a 5 cm margin on the left of the first side, and if double sided, 5 cm on the right of the second side of each sheet of paper;

c. Must have its pages numbered consecutively in the top right corner; and printed on both sides of each sheet of paper;

d. Stapled in the top left corner or otherwise bound.

The textual content of any document filed, including endnotes, footnotes and quotations, must be typed using (r21(1A) SC Rules):

a. at least 12 point 12 Times New Roman;

b. a line spacing of at least 1.5.

An affidavit filed must have a cover sheet in the form of Form 11.

Each document in an appeal book must be clearly legible (r39(1) SC Rules). A registrar may order that a certified copy of the original be produced for documents that are not clearly legible (r39(1A) SC Rules).

A document must not be reduced in size unless a registrar orders otherwise (r39(1B) SC Rules).

Each page in the appeal book must have every fifth line on the page numbered, or letters placed beside the text at 50mm intervals in the left margin (r 39(2) SC Rules).

The pages in each part of an appeal book, other than the cover page and pages of the index, must be numbered consecutively even if it comprises 2 or more volumes (r39(3) SC Rules).

Each volume of each part of an appeal book (r39(4) SC Rules):

a. May but not need a clear plastic sheet over the cover page and on the back of the volume;

b. Must start with the cover page for that part and volume;

c. Must contain the index for that part; and

d. Must not comprise more than 500 pages (250 sheets of paper); and

e. Must be bound so that when it is opened at a page, both sides of the volume lie flat and open at that page.

The cover page must be in the form of Form 15 and of durable paper of the colour required for that Appeal Book (r 39(5) SC Rules).

The index must be typed using one and a half line spacing or more and indicate which pages of the part are in which volume if applicable (r 39(6) SC Rules).

An appeal book that is filed electronically, for each volume must not be greater than 200 megabytes, contain a colour version of a document if the original is in colour; and must be in a form that allows the text to be electronically searchable (r 39(4A).