Appealing against sentence to the Court of Appeal is a two step process. First, the Court of Appeal must grant leave to appeal. Second, there is the hearing of the appeal itself. Then, if you get past that first hearing you go onto a full hearing of the matter. In detail the appeal against sentence process is;
- An application for leave to appeal against sentence is made up of the appeal papers and a written case, that is a document that sets out precisely the grounds on which the appeal is brought, and the arguments which go to supporting that ground.
The Court of Appeal will not have a hearing for the leave application unless it is specifically requested. They intend to do it on the papers. The Court expect that all of the arguments will be set out in the written case. For this reason it is important that the written case is as detailed as possible and sets out the most persuasive arguments as it is the document on which the very important decision to grant leave is decided.
- If the appeal is not filed within time then an application for an extension of time to file an appeal against conviction may be granted by the Registrar of Criminal Appeals. An affidavit needs to be filed explaining in detail why the application for leave to appeal was not filed in time. Getting leave to appeal out of time becomes harder the more time passes, so it is very important to ensure that you do everything you can to have the papers filed at Court as soon as possible.
In filing the Sentence Appeal it is important that counsel have access to all of the plea transcript, and sentencing remarks. Sometimes this material is not available prior to the filing of the written case due to the long wait at the transcription service to produce the material.
- It is not something that is the fault of the Court of Appeal or the Court of Appeal Registry who are very helpful and try to get matters on as soon as they can. Unfortunately a lack of Judges and resources means that the appeal process is a very slow one.
Generally the Barrister who handled the sentence should have some notes or thoughts about what potentially went wrong in the sentencing process. This is often important to get as a starting point to see if there are good appeal points.
- This is the point at which your appeal lawyers should be reading all the hand-up brief and other material that needs to be scrutinized. There should be discussions with the appellant as to what they think went wrong in the sentencing process. Barristers should be briefed and given the information that they need to have some idea of the issues.
It is normal to use different Barristers to the ones who did the plea. The reason for this is that is hard to be objective about something you have done yourself.
It is important to start this work before the transcripts arrive as the timelines start getting closer.
Read on to learn more about appeal matters:
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If you need advice, call Doogue + George on 9670 5111 and discuss your options.