Chapter 3
The existing court process for sexual violence cases


3.74In trials by both judge-alone and by jury, the defence and the prosecution have rights of appeal against decisions made pre-trial and after conviction.

3.75Decisions made by a District Court judge in category 3 cases after a defendant has elected trial by jury and in category 4 cases are appealable in the first instance to the Court of Appeal.214 First appeals may, with leave of the court, be made directly to the Supreme Court, but only if the Supreme Court is satisfied it is necessary in the interests of justice for it to hear and determine the appeal, and that there are exceptional circumstances to justify a direct appeal.215

Appeal of pre-trial decisions

3.76Certain pre-trial decisions may, with leave of the court, be appealed by either the prosecution or the defence216 and, with further leave of the first appeal courts, may be appealed to the second appeal court.217 The prosecution and defence may appeal, amongst other matters, decisions on the admissibility of evidence and cross-examination of complainants.218 Some decisions may be appealed only by the defence219 and a greater range of pre-trial matters may be appealed in jury trials.

Appeal against conviction and sentenceTop

3.77A person convicted of an offence may appeal their conviction once as of right and, with leave, a second time, to a higher court.220 A third appeal against conviction or sentence may be brought, with leave, on questions of law.221
3.78A first appeal court must allow an appeal against conviction if the jury’s verdict was unreasonable with regard to the evidence or, in a judge-alone case, the judge erred in their assessment of the evidence to such an extent that a miscarriage of justice had occurred, or there had been a miscarriage of justice for any other reason.222
3.79The prosecution may not appeal an acquittal, but may, with leave, appeal a trial court’s ruling on a question of law, albeit not one that arises from a jury verdict.223
3.80Both the defence and the prosecution may appeal the sentence imposed (once as of right and a second time with leave).224 A first appeal court must allow the appeal if satisfied that there is an error in the sentence and a different sentence should be imposed, but must otherwise dismiss the appeal.225 Thus, in disposing of a successful sentence appeal, a court must set aside or vary or remit the sentence with directions for the sentencing court to adjust it.226
214Criminal Procedure Act 2011, ss 219 and 230.
215Supreme Court Act 2003, s 14.
216Criminal Procedure Act 2011, ss 215–217.
217Criminal Procedure Act 2011, s 223. The second appeal court “must not give leave for a second appeal”, however, unless it is satisfied that the appeal “involves a matter of general or public importance” (s 223(3)(a)) or “a miscarriage of justice may have occurred or may occur unless the appeal is heard” (s 223(3)(b)).
218Criminal Procedure Act 2011, s 215(2).
219Criminal Procedure Act 2011, s 218. In category 3 cases after the defendant elects a jury trial, or in category 4 cases.
220Criminal Procedure Act 2011, ss 229 and 244 (rights of first appeal against conviction and sentence); ss 237 and 253(1) (second appeals against conviction and sentence).
221Criminal Procedure Act 2011, ss 243 and 259.
222Criminal Procedure Act 2011, s 232. If it allows an appeal against conviction, a court may direct that an acquittal be entered, or order a new trial, or substitute a conviction for a different offence, or make any other order it considers justice requires: s 233.
223Criminal Procedure Act 2011, s 296. In addition to pre-trial and post-trial appeal rights, the Criminal Procedure Act 2011 provides both defendants and prosecutors the right to appeal, with leave, questions of law that arise during (and before) trial. If leave is sought before the trial has started, the trial must not start before the application is determined unless that is in the interests of justice. Conversely, if an application is made during trial, the trial must be continued unless it is in the interests of justice that it be adjourned: s 301.
224Criminal Procedure Act 2011, ss 244, 246 and 253(2).
225Criminal Procedure Act 2011, s 250.
226Criminal Procedure Act 2011, s 251.