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Practice Note No. SC CCA 1

Court of Criminal Appeal – General


Date:
09/30/2013



    Commencement

    1. This Practice Note was issued on 30 September 2013 and commences on 7 October 2013.

    Application

    2. This Practice Note applies to new and existing matters in the Court of Criminal Appeal.

    Definitions

    3. In this Practice Note:
        CCA means the Court of Criminal Appeal.
        Rules means the Criminal Appeal Rules.

    Introduction

    4. The purpose of this Practice Note is to explain the administrative and case management procedures followed in the CCA.

    Lodging Notices of Intention to Appeal against a Conviction or Sentence

    5. Any person intending to appeal against a conviction or sentence may lodge, email (courtofcriminalappeal@courts.nsw.gov.au) or send by post or facsimile a Notice of Intention to Appeal (Form IVA in the Rules) to the Registrar. The Registrar will acknowledge receipt of every Notice lodged. The Registrar will require the intending appellant to provide information as to legal representation and an address to which a copy of the transcript and exhibits from the proceedings in the Court of Trial may be forwarded.

    6. The Court of Trial, upon the request of an intending appellant, or the solicitor acting for the intending appellant, will arrange for the supply of a copy of the transcript and exhibits from the trial and/or sentence proceedings.

    7. Contact details of the relevant Courts of Trial are:
        Supreme Court

        For copies of transcripts and exhibits:
            The Registrar, Common Law Division
            Supreme Court of New South Wales
            Law Courts Building
            Queens Square
            SYDNEY NSW 2000
            (DX 829 SYDNEY)
        Land and Environment Court

        For copies of transcripts and exhibits:
            The Registrar
            Land and Environment Court
            225 Macquarie Street
            SYDNEY NSW 2000
            (DX 264 SYDNEY)
        District Court

        For copies of exhibits:
            The Registrar
            District Court Criminal Registry
            Level 3 Downing Centre
            143-147 Liverpool Street
            SYDNEY NSW 2000
            (DX 11518 SYDNEY DOWNTOWN)
        For copies of transcripts, Remarks on Sentence, Judgments, and any Summing Up to the Jury:
            The Manager
            Reporting Services Branch, Department of Attorney General and Justice
            Client Services, NIA Section
            Reporting Services Branch, Department of Attorney General and Justice
          Level 6 Downing Centre
          143-147 Liverpool Street
          SYDNEY NSW 2000
        Drug Court

        For copies of transcripts and exhibits:
            The Registrar
            Drug Court of New South Wales
            Court House
            PARRAMATTA NSW 2150
            (PO Box 92, PARRAMATTA NSW 2124)
    8. Following receipt of a copy of the transcript and exhibits, the solicitor for an intending appellant should promptly arrange for a determination of merit to be obtained and then seek instructions as to whether an appeal is to proceed.

    Extension of the effect of a Notice of Intention to Appeal

    9. A Notice of Intention to Appeal has effect for six months from the date of lodgement. An Application for Extension of Time to Appeal may be lodged or sent by post or facsimile to the Registrar (Form VF in the Rules). Such Application should set out the reasons for extension, and identify any difficulties in the receipt or preparation of documents for the purposes of the intended appeal.

    Lodging a Notice of Appeal or Notice of Application for Leave to Appeal

    10. If an appeal or an application for leave to appeal is to proceed, the original and at least three copies of the Notice of Appeal or the Notice of Application for Leave to Appeal (as the case may be) must be lodged at the Registry or sent by post to the Registrar. Either notice must be accompanied by the documents specified in Rule 23C of the Rules, namely, a Statement Nominating Legal Representation, the Grounds of Appeal, the Submissions in support of the Appeal, and a Certificate stating that all transcripts and exhibits are available from the Trial Court.

    11. Where the effect of a Notice of Intention to Appeal has expired, an Application for Extension of Time to Appeal (Form V in the Rules) must be lodged with the Notice of Appeal or Notice of Application for Leave to Appeal.

    12. The Notice of Appeal or the Notice of Application for Leave to Appeal will be listed for callover before the Registrar at the earliest possible time with a view to fixing the first available hearing date.

    13. In the case of urgent appeals, the Registrar may waive or adjust the requirements of Rule 23C.

    14. If a decision is taken not to pursue an appeal or to seek leave to appeal after a Notice of Intention to Appeal has been lodged, no further documents need be sent to the Registrar; the effect of the Notice of Intention to Appeal will lapse after six months (or if the effect of a notice has been extended, after that further extension).

    15. The overall effect of the giving of a Notice of Intention to Appeal is to facilitate the obtaining of necessary transcripts, exhibits and other documents so that a decision may be taken as to whether an Appeal or Application for Leave to Appeal should be instituted, and to ensure that, when instituted, all material is available to enable the expeditious listing and determination of the appeal or application.

    Direction to file written submissions

    16. The Registrar, when fixing a date for the hearing of an Appeal or an Application for Leave to Appeal, will direct the parties to file and serve written submissions on or before particular dates prior to the hearing. In appeals against conviction, or applications for leave to appeal against sentence, ordinarily the appellant’s or applicant’s submissions will have been filed with the Notice of Appeal or Notice of Application for Leave to Appeal, pursuant to clause 23C of the Rules.

    17. The party filing written submissions shall lodge at least four copies of the submissions with the Registrar.

    Email filing of written submissions

    18. An electronic copy of submissions should be sent to the email address of the CCA (courtofcriminalappeal@courts.nsw.gov.au) three days before the hearing. This is in addition to the hard copy of the submissions that will have been previously filed at the Registry in accordance with the directions made by the Registrar at the callover.

    Written submissions in an Appeal or Application for Leave to Appeal against Conviction

    19. In an appeal against conviction, the submissions of both parties shall contain:
        (a) a brief statement in narrative form of the Crown case and of the case raised or put forward by the appellant at the trial;

        (b) an outline of the argument to be put in relation to each ground of appeal with:

        (c) the terms of that ground of appeal set out in full;

        (d) page references to the transcript relating to any evidence referred to; and

        (e) appropriate citations of authority relied upon for the propositions of law stated (including, where appropriate, page references); and

        (f) a separate list of any authorities to which it is expected that the members of the Court may be referred during the argument.

    20. In an appeal against conviction, the Crown shall file an index to the material evidence, a statement in summary form of the evidence of the material witnesses and a list of exhibits.

    Written submissions in applications for Leave to Appeal against Sentence

    21. In an application for leave to appeal against sentence, the applicant's submissions shall contain:
        (a) a brief statement in narrative form of the Crown case which led to the conviction, but only where such case is not sufficiently apparent from the sentencing judge's remarks on sentence;

        (b) a statement of the particular objections to the sentence and to the reasons of the sentencing judge which are to be argued;

        (c) a brief statement of the argument as to why leave to appeal should be granted; and

        (d) a separate list of any authorities to which it is expected that the members of the Court may be referred during the argument.

    22. The Crown need not file written submissions in relation to applications for leave to appeal against sentence, but it may do so, and it should do so if it is suggested that there is some significant error of fact or principle in the applicant's submissions.

    Written submissions in a Crown appeal against Sentence

    23. In a Crown appeal against sentence, the Crown's submissions shall contain:
        (a) a brief statement in narrative form of the Crown case which led to the conviction, but only where such case is not sufficiently apparent from the sentencing judge's remarks on sentence;

        (b) a statement of the particular objections to the sentence and to the reasons of the sentencing judge which are to be argued;

        (c) a brief statement of the argument as to why the Court should interfere with the sentence imposed (including, if appropriate, details of the range of sentences imposed in other relevant cases);

        (d) details of when and how the respondent was notified of the Crown's intention to appeal; and

        (e) a separate list of any authorities to which it is expected that the members of the Court may be referred during the argument.

    24. The respondent need not file written submissions in relation to Crown appeals, but may do so, and should do so if it is suggested that there is some significant error of fact or principle in the Crown's submissions.

    Other Appeals which are not Rehearings

    25. In cases stated for the determination of the Court and other proceedings in the nature of an appeal that is not a rehearing, the submissions of both parties are to contain:
        (a) a brief statement in narrative form of the factual background against which the questions are raised for the determination of the Court, but only where that background is not sufficiently apparent from the stated case or from some other document already filed;

        (b) an outline of the argument to be put in support of each question for determination with:

        (c) the terms of that question set out in full;

        (d) page references to any transcript relating to any evidence referred to, and appropriate citations of authority relied upon for the propositions of law stated (including, where appropriate, page references); and

        (e) a separate list of any authorities to which it is expected that the members of the Court may be referred during the argument.


    Appeals by way of Rehearing

    26. In appeals that are to be heard by way of rehearing, the submissions of the appellant are to contain:
        (a) a brief statement in narrative form of the prosecution case and of the case raised or put forward by the appellant at the trial;

        (b) a brief statement in narrative form of the facts which the appellant contends should have been found at first instance;

        (c) an outline of the argument to be put in relation to each ground of appeal with:

        (d) the terms of that ground of appeal set out in full;

        (e) page references to the transcript relating to any evidence referred to, and appropriate citations of authority relied upon for the propositions of law stated (including, where appropriate, page references);

        (f) an index to the material evidence and a list of exhibits; and

        (g) a separate list of any authorities to which it is expected that the members of the Court may be referred during the argument.


    27. The submissions of the respondent are to contain:
        (a) a brief statement in narrative form of the prosecution case and of the case raised or put forward by the appellant at the trial;

        (b) an outline of the argument to be put in opposition to the appeal, with page references to the transcript relating to any evidence referred to and with appropriate citations of authority for the propositions of law stated (including, where appropriate, page references); and

        (c) a separate list of any authorities to which it is expected that the members of the Court may be referred during the argument.


    Other Applications

    28. In other applications, the submissions of the applicant shall contain:
        (a) a brief statement in narrative form of the factual background against which the application is to be determined by the Court, in sufficient detail as to permit the application to be heard by the Court without the need to read any other material;

        (b) a statement as to the orders sought and (if expected that it will be of assistance to the Court) a brief outline of the argument to be put relating to each such order; and

        (c) a separate list of any authorities to which it is expected that the members of the Court may be referred during the argument.


    29. The respondent need not file written submissions in relation to such applications, but should do so where it is expected that they will be of assistance to the Court.

    List of Authorities

    30. Authorities cited in submissions that are not likely to be needed in Court should not be included in a list of authorities. The list should only include authorities to which it is expected the Court will be referred during the argument.

    31. Where reliance is to be placed on an authority that is unreported, the party citing that authority shall attach a copy of the unreported judgment to the list of authorities. An authority published on Caselaw with a case neutral citation is not considered by the Court to be a reported judgment.

    32. Lists of authorities need not be filed at the same time as the written submissions but must be filed not later than one full working day before the hearing.

    Email filing of List of Authorities

    33. Lists of authorities and unreported judgments may be sent to the email address of the CCA (courtofcriminalappeal@courts.nsw.gov.au) by no later than 10:00 am on the day before the hearing. The parties are not required to file a hard copy of that material if it has been sent by email.

    Drop off box for non-urgent CCA filings

    34. A drop off box is available in the Supreme Court Registry, Level 5, for non-urgent CCA filings, for use as follows:
        (a) the material is to be placed in a sealed envelope so that it is secure and cannot be mingled with other possible loose material in the box;

        (b) at least four copies of any document to be filed are to be provided;

        (c) the envelope must be clearly marked with the matter name, the CCA file number, and the contact name and telephone number of the filing party;

        (d) the material is in regard to matters that are not listed before the Court within two clear working days of the lodgement of the material in the box – eg, if a case is listed before the Court on a Monday, the last day for lodgement of any material is close of business Wednesday;

        (e) applications for interlocutory appeals and bail review must be filed at the counter, and not by way of the drop off box;

        (f) material for the commencement of new matters must not be lodged in the drop off box, it must be filed at the counter; and

        (g) sealed copies of the filed material will be placed in each filer’s satchel or in an envelope for collection upon request by 10:00 am the following day.


    Interlocutory Appeals

    35. Interlocutory appeals will be heard by the Court as expeditiously as possible. Appellants at the first callover must be ready to take a date for hearing, particularly where a pending appeal may have an effect on a trial pending or due to start. The parties will be expected to supply written submissions within a short timeframe.

    36. Appeals will not be adjourned on the basis of the appellant obtaining a “merits advice” from the Legal Aid Commission of New South Wales.

    37. Where an interlocutory appeal is urgent, the appellant should contact the Registrar and inform the Registrar of a realistic time estimate, together with the availability of counsel for all parties. The Registrar will determine the urgency of the matter and will make suitable arrangements for the listing of the interlocutory appeal. Counsel’s availability will not be a factor in determining the hearing date.

    Interlocutory appeals against the discharge of a jury

    38. Where a trial judge proposes to discharge a jury, a party may ask the judge to delay the making of the order pending the filing of an Application for Leave to Appeal.

    39. The Court will hear any application against a decision to discharge a jury on an urgent basis. Counsel’s availability will not be a factor in determining the hearing date.


    T F Bathurst

    Chief Justice of New South Wales

    30 September 2013


    Amendment History:
    30 September 2013: This Practice Note replaces former Practice Note SC CCA 1 which was issued and commenced on 14 October 2005.

    14 October 2005: This Practice Note replaced former Practice Note SC CCA 1 that was issued and commenced on 17 August 2005.

    17 August 2005: Practice Note SC CCA 1 was issued and commenced. It replaced former Practice Notes numbered 57, 98 and 112.

    Related Information:
    Criminal Appeal Rules



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