Part 3 Right of appeal and determination of appeals
5 Right of appeal in criminal cases
(1) A person convicted on indictment may appeal under this Act to the court:(a) against the person’s conviction on any ground which involves a question of law alone, and(b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and(c) with the leave of the court against the sentence passed on the person’s conviction.(2) For the purposes of this Act a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence.
5AA Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction
(1) A person:(a) convicted of an offence, or(b) against whom an order to pay any costs is made,by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.(2) For the purpose of this Act, a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence.(3), (3A) (Repealed)(4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal.(5) Section 7 (4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5 (1).(6) Provisions shall be made by rules of court for detaining an appellant on an appeal under subsection (1) who has been sentenced to imprisonment until the appeal has been determined, or for ordering the appellant into any former custody.
5AB Appeal in criminal cases dealt with by Land and Environment Court in its summary jurisdiction
Section 5AA applies to and in respect of a person:(a) convicted of an offence, or(b) against whom an order to pay costs is made,by the Land and Environment Court in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to the Land and Environment Court.
5AC Appeal in criminal cases dealt with by Court of Coal Mines Regulation in its summary jurisdiction
Section 5AA applies to and in respect of a person:(a) convicted of an offence, or(b) against whom an order to pay costs is made,by a Court of Coal Mines Regulation in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to a Court of Coal Mines Regulation.
5AD Appeals as to related summary offences in criminal cases dealt with by the Supreme Court or the District Court
(1) Section 5AA applies to and in respect of a person convicted of an offence by the Supreme Court or District Court in the exercise of its jurisdiction under Division 7 of Part 3 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as it applies to a person referred to in section 5AA (1).(2) For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the District Court.(3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct unless:(a) the judge considers that the appeal should be dealt with by the full court and notifies the Chief Justice accordingly, or(b) an appeal is lodged under this Act in relation to the related indictable offence.
5AE Point of law stated during summary proceedings
(1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.
5AF Appeals from sentences imposed by the Drug Court
(1) Section 5AA applies to and in respect of a person convicted of an offence by the Drug Court in the exercise of its jurisdiction under Part 2 of the Drug Court Act 1998 (in relation only to a final sentence determined by the Court under section 12 of that Act) in the same way as it applies to a person referred to in section 5AA (1).(2) For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the Drug Court.(3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct.
5A Point of law stated by judge
(1) The judge before whom any person is tried and convicted on indictment may submit any question of law arising at or in reference to such trial or conviction to the Court of Criminal Appeal for determination, and such submission shall be dealt with as if it were an appeal under section 5.(1A) (Repealed)(2)(a) Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) either before or after the commencement of the Criminal Appeal (Amendment) Act 1977 the Attorney-General or Director of Public Prosecutions may at any time after the conclusion of the trial submit for determination by the Court of Criminal Appeal any question of law arising at or in connection with the trial.(b) The Attorney-General or Director of Public Prosecutions shall submit with the question to be determined a statement of the circumstances out of which the question arose and thereafter shall furnish such further statement as the Court of Criminal Appeal may require.(c) The Court of Criminal Appeal shall hear and determine any question submitted to it under this subsection.(d) The determination by the Court of Criminal Appeal of the question submitted shall not in any way affect or invalidate any verdict or decision given at the trial.(e) Any person charged at the trial or affected by the decision shall be entitled to be heard before the Court of Criminal Appeal upon the determination of the question submitted, and if it appears that such person does not propose to be represented upon such determination, the Attorney-General or Director of Public Prosecutions shall instruct counsel to argue such question before the Court of Criminal Appeal on behalf of such person.(f) The reasonable costs of legal representation of any person heard before the Court of Criminal Appeal as provided in this subsection shall be paid by the Crown.(g) The hearing and determination of any question under this subsection shall be held in camera:Provided that nothing in this paragraph shall preclude a barrister or solicitor from being present at the hearing and determination for the purpose of reporting the case for any lawful purpose of the Council of Law Reporting for New South Wales.
(h) No report of any submission made pursuant to paragraph (a) shall be published. No report of proceedings under this subsection shall be published which discloses the name or identity of the person charged at the trial or affected by the decision given at the trial. Any publication in contravention of the foregoing provision shall be punishable as contempt of the Supreme Court.(3) Subsection (2) applies in respect of a person tried in the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction in proceedings to which the Crown was a party in the same way as it applies in respect of a person tried on indictment.
5B Case stated from District Court
(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.
5BA Case stated from Land and Environment Court
(1) A Judge of the Land and Environment Court may submit any question of law arising on any appeal to the Land and Environment Court in its environmental offences appeals jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the Land and Environment Court as it thinks fit.(2) At the request of a person who was the appellant in an appeal referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.
5C Appeal against quashing of an indictment
Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 246 (1) of the Criminal Procedure Act 1986 or any charge specified in such an application, or the Land and Environment Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 41 (1) of the Land and Environment Court Act 1979 or any charge specified in such an application, or a Court of Coal Mines Regulation in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 246 (1) of the Criminal Procedure Act 1986, as applied by section 152 (3) of the Coal Mines Regulation Act 1982, or any charge specified in such an application, the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary.
5D Appeal by Crown against sentence
(1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.(1A) The Environment Protection Authority may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or the Land and Environment Court in any proceedings for an environmental offence (otherwise than on an appeal), if those proceedings have been instituted or carried on by, or on behalf of, the Environment Protection Authority. The Court of Criminal Appeal may impose such sentence as to it may seem proper.(2) In this section, a reference to proceedings to which the Crown was a party includes a reference to proceedings instituted by or on behalf of:(a) the Crown, or(b) an authority within the meaning of the Public Finance and Audit Act 1983,or by an officer or employee of such an authority acting in the course of his or her employment.(2A) In this section, a reference to an environmental offence is a reference to an offence against the environment protection legislation as defined in the Protection of the Environment Administration Act 1991.(3) This section does not apply to an appeal referred to in section 5DA.
5DA Appeal by Crown against reduced sentence for assistance to authorities
(1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.(2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit.(3) A reference in subsection (1) to a sentence imposed on a person includes a reference to a sentence that was varied or imposed by the Court of Criminal Appeal.
5DB Appeals by Crown against sentences for related summary offences in criminal cases dealt with by Supreme Court or District Court
(1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed by the Supreme Court or District Court on the conviction of a person for a related summary offence in the exercise of its jurisdiction under Division 7 of Part 3 of Chapter 3 of the Criminal Procedure Act 1986.(2) The Court of Criminal Appeal may, in its discretion, do any one or more of the following:(a) confirm, quash, set aside or vary the sentence,(b) impose such sentence as to the Court of Criminal Appeal may seem proper,(c) exercise, by order, any power that the Supreme Court or District Court might have exercised.(3) Any sentence varied or imposed, or any order made, by the Court of Criminal Appeal under this section is to have the same effect and be enforced in the same manner as if it had been imposed by the Supreme Court or District Court.(4) The Court of Criminal Appeal may not:(a) vary a sentence so that the sentence as varied could not have been imposed by the Supreme Court or District Court, or(b) impose a sentence that could not have been imposed by the Supreme Court or District Court,as the case may be.(5) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct unless:(a) the judge considers that the appeal should be dealt with by 2 or more judges and notifies the Chief Justice accordingly, or(b) an appeal is lodged under this Act in relation to the related indictable offence.(6) On an appeal under this section against a sentence, new evidence or information may be given with the leave of the Court of Criminal Appeal. However new evidence or information may be given by the prosecution only in exceptional circumstances.(7) Except as provided by subsection (6), nothing in this section limits section 12.
5E Appeal by any person pronounced an habitual criminal
Any person who:(a) is pronounced to be an habitual criminal under the provisions of the Habitual Criminals Act 1957 and is sentenced under the provisions of that Act, may, by leave of the court, appeal against such pronouncement and sentence, or(b) is an habitual criminal and is sentenced under the provisions of subsection (5) of section 8 of that Act, may, by leave of the court, appeal against such sentence,and the provisions of this Act applicable to an appeal against a sentence passed on a conviction on indictment shall apply to such an appeal.
5F Appeal against interlocutory judgment or order
(1) This section applies to:(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and(b) proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and(c) proceedings in Class 5 of the Land and Environment Court’s jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979).(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:(a) if the Court of Criminal Appeal gives leave to appeal, or(b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.(5) The Court of Criminal Appeal may:(a) affirm or vacate the judgment or order appealed against, or(b) give or make an interlocutory judgment or order instead of the judgment or order appealed against.(6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.(7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001.
6 Determination of appeals in ordinary cases
(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.(2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
6AA Appeal against sentence may be heard by 2 judges
(1) The Chief Justice may direct that proceedings under this Act on an appeal (including proceedings on an application for leave to appeal) against a sentence be heard and determined by such 2 judges of the Supreme Court as the Chief Justice directs.(2) Such a direction may only be given if the Chief Justice is of the opinion that the appeal is not likely to require the resolution of a disputed issue of general principle.(3) For the purposes of proceedings the subject of a direction under this section, the Court of Criminal Appeal is constituted by the 2 judges directed by the Chief Justice.(4) The decision of the court when constituted by 2 judges is to be in accordance with the opinion of those judges.(5) If the judges are divided in opinion:(a) as to the decision determining the proceedings, the proceedings are to be reheard and determined by the court constituted by such 3 judges as the Chief Justice directs (including, if practicable, the 2 judges who first heard the proceedings on appeal), or(b) as to any other decision, the decision of the court is to be in accordance with the opinion of the senior judge present.(6) Proceedings heard by the court constituted by 2 judges under this section are rendered abortive for the purposes of section 6A (1) (a1) of the Suitors’ Fund Act 1951 if they are required to be reheard because the judges were divided in opinion as to the decision determining the proceedings. The rehearing of the proceedings is considered to be a new trial for the purposes of that Act.
6A Powers of court in relation to certain convictions and sentences concerning mentally ill persons
On an appeal under section 5 (1) against a conviction or sentence, being:(a) a finding or verdict under or in accordance with section 14, 22 (1) or 30 (2) of the Mental Health (Criminal Procedure) Act 1990 in respect of a person, or(b) a limiting term within the meaning of section 24 of the Mental Health (Criminal Procedure) Act 1990 or an order under section 39 of that Act in respect of a person, or(c) a penalty imposed, or any order made, under section 23 (2) of the Mental Health (Criminal Procedure) Act 1990 in respect of a person,the court may make any finding, verdict, order or determination which could have been made in relation to the proceedings before the court of trial.
7 Powers of court in special cases
(1) If it appears to the court that an appellant on an appeal under section 5 (1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefor as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted.(1A) If on an appeal against a sentence under section 5 (1), 5D, 5DA or 5DB, the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial:(a) in relation to any offence charged in any other count or part of the same indictment, or(b) in relation to any offence charged in any count or part of any other indictment, or(c) in relation to any offence dealt with under section 105 of the Criminal Procedure Act 1986, or(d) in relation to any back up offence or related offence dealt with under section 167 of the Criminal Procedure Act 1986,and pass such sentence, whether more or less severe, in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence.(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.(3) Where on the conviction of the appellant the jury have found a special verdict, and the court considers that a wrong conclusion has been arrived at by the court of trial on the effect of that verdict, the court may, instead of allowing the appeal, order such conclusion to be recorded as appears to the court to be in law required by the verdict, and pass such sentence whether more or less severe, in substitution for the sentence passed, as may be warranted in law.(4) If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, the appellant was mentally ill, so as not to be responsible, according to law, for the appellant’s action at the time when the act was done or omission made, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law.
8 Power of court to grant new trial
(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.(2) Provision shall be made by rules of court for detaining the appellant until the fresh trial has terminated, or for ordering the appellant into any former custody.
8A Power of court to order committal proceedings to be continued in certain cases
(1) Where a person deemed to be convicted on indictment under section 105 (2) of the Criminal Procedure Act 1986, appeals to the court against the conviction, the court may, either of its own motion, or on the application of the appellant, order that the proceedings before the Magistrate at which the appellant pleaded guilty be continued at a time and place to be specified in the order, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order that those proceedings be so continued than by any other order which the court is empowered to make.(2) Where an order is made under subsection (1), the proceedings before the Magistrate shall be continued in all respects as if the appellant had not pleaded guilty and as if those proceedings had been adjourned by the Magistrate to the time and place specified in the order.Upon the making of the order, the court may, subject to the Bail Act 1978, exercise any power that the Magistrate might have exercised under section 41 of the Criminal Procedure Act 1986, if the order had been an order made by the Magistrate adjourning the proceedings to the time and place so specified, and the provisions of section 41 of that Act apply to and in respect of the appellant.
(3) The powers conferred on the court by this section are in addition to any other power conferred on the court by this Act.
9 Revesting and restitution of property
(1) The operation of any order for the restitution of any property, or for the payment of compensation to an aggrieved person, made by the court of trial shall (unless such court directs to the contrary in any case in which in its opinion the title to the property is not in dispute) be suspended:(a) until the expiration of the time provided by this Act for giving the court notice of intention to appeal or to apply for leave to appeal, and(b) if the notice is given within that time, until the determination of the appeal or the refusal of the application (or until the expiration of any time prescribed by the rules of court for making the appeal or application after the giving of the notice),and in cases where the operation of any such order is suspended until the determination of the appeal, the order shall not take effect as to the property in question if the conviction is quashed on appeal, except by the special order of the court.(2) The court may annul or vary any such order although the conviction is not quashed.(3) The court or a judge thereof may give such directions as the court or judge thinks fit for the custody of any such property pending the suspension of any such order.(4) Where a direction for the payment of compensation is given under section 71 or 77B of the Victims Compensation Act 1996 against any person in respect of an offence taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in passing sentence:(a) the operation of the direction shall be suspended until the expiration of the time provided for appealing to the court, and(b) where notice of appeal or of application for leave to appeal is given within the time provided, the operation of the direction shall be suspended until the determination of the appeal or refusal of the application,and in cases where the operation of any such direction is suspended until the determination of the appeal, the direction shall not take effect if the conviction for the offence or, if more than one, all the offences, of which that person was convicted in the proceedings in which the direction was given, is quashed on appeal, except by the special order of the court.(5) Where a direction for the payment of compensation is given under section 71 or 77B of the Victims Compensation Act 1996 against any person in respect of an offence taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in passing sentence, the court may annul or vary any such direction although the conviction for the offence or, if more than one, all the offences, of which that person was convicted in the proceedings in which the direction was given is not quashed on appeal.