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LEGAL MATTERS

 

 

Cartoon by Kj Klopper based on a real appeal hearing in the High Court-(C) 2011

 

A PRACTICAL GUIDE TO CRIMINAL APPEALS FROM THE LOWER COURT

 

In this article I deal with the practical process that is generally followed when there is a criminal appeal from a lower court. There are many variations but for purposes of the article I accept that the process is one which follows the normal course of events without any complications. (This does not sound real but the majority of appeals are heard without complications).

 

The Presiding Officer has given a judgment on the merits and has imposed a sentence. The accused person believes that the judgment and conviction are incorrect and/or that the sentence imposed is inappropriate. One word remains-‘Appeal’.

Except in the case of the provisions of the Child Justice Act, the right to appeal is not automatically granted to an accused person who has been convicted and sentenced and an application must be made to the particular court for leave to appeal.

 Before leave to appeal is granted there must be some merits in the appeal. As far as the conviction is concerned questions often arise concerning the court’s findings in respect of the credibility and reliability of witnesses and the rejection of an accused person’s evidence. These issues are often stipulated as the grounds of appeal. When an appeal is lodged against sentence the issues are generally whether the sentence was inappropriate, unreasonably excessive or if the court failed to consider certain factors or over- or underemphasised certain relevant factors. Depending on the nature of the trial many issues can be raised as grounds of appeal.

 

The application for leave to appeal made to the court that gave the judgment or imposed the sentence, must be made within 14 days after the passing of the sentence. If it is late an application must be made for condonation (permission to file late with good reasons for the delay).

It is possible to apply orally for leave to appeal immediately after the sentence is imposed but this often depends on whether the court has the time to hear the application at this stage and whether the parties are prepared to argue the application. Some presiding officers prefer that the application be made by way of a notice. If not done orally the application by way of notice must be made within 14 days as indicated above.

The notice must set out clearly the grounds on which the appeal is based.

The notice is filed at the relevant court and the Presiding Officer will inform the legal representative/appellant and the State Prosecutor of the date on which the application will be heard. On the determined day the application is made in court and argument is heard from the parties. It is generally expected of the court hearing the application to decide whether there is a reasonable prospect of success on appeal and if there is to grant the application. This also requires the court to consider whether another forum may come to a different conclusion concerning the issues on appeal. The court can grant leave to appeal or refuse it.

Once granted the Clerk of the Court prepares the record of proceedings and copies are sent to the Registrar of the High Court and the Director of Public Prosecutions.

If the application is refused then this is not the end of the matter as the accused has the right to follow the petition procedure. The petition procedure is simply a request to the Judge President of the High Court to grant permission for leave to appeal in instances where the lower court refused it. It has a particular form and must contain the grounds and reasons for the request. The petition is filed with the Clerk of the relevant court within 21 days after the application for leave was refused. The Clerk despatches the record of proceedings and the application for leave to appeal to the Registrar of the High Court.

When the Registrar receives the documents, the documents and petition are placed before two Judges in chambers (not open court) for consideration. The Director of Public Prosecutions is also informed of the process.

The Judges consider the record and the petition and may grant or refuse it. If they both agree then the matter is final but if they differ in opinion the matter is referred to the Judge President or another Judge for consideration. The decision of the majority of Judges is then the final decision. The parties concerned are then informed of the outcome.

Judges who consider petitions have reasonably wide powers to request further arguments and particulars before deciding a matter.

 

If the petition is granted, the matter proceeds to the appeal stage.

The process differs in the different divisions of the High Court depending on the practice determined by the Judge President and the practice committee of that division. The practice committee is generally a group of judges who define rules applicable to processes in that court. In the Western Cape the Director of Public Prosecutions issues a notice indicating that Heads of Argument must be filed by the Appellant and the Respondent by a fixed date.

 At this stage the Appellant or his legal representative (advocate or attorney with appearance rights in the High Court) peruses the record of proceedings in the lower court and drafts heads of argument. In its simple form, heads of argument is a document setting out the main points of argument that are to be made at the appeal hearing. In practice however this document has often become more elaborate and comprehensive than was the original intention and it often contains the entire argument and authority for the argument.

The Appellant’s heads are filed with the Registrar and the Respondent who is the Director of Public Prosecutions. The Respondent then files heads and delivers a copy to the Appellant. The heads of the parties are placed in the court file and are sent with the record of proceedings in advance to the two Judges who are allocated to hear the appeal. A notice indicating when the appeal hearing is to take place is issued and served on the parties. The length of time for an appeal to be heard depends on the court roll and the availability of Judges. The Appellant must also confirm that the prosecution of the appeal is going ahead by means of a notice filed with the Registrar and the Director of Public Prosecutions.

On the day of the appeal hearing the legal representative of the Appellant and representative of the Respondent appear in open court before the two Judges. The Appellant and Respondent’s arguments are heard by the Judges (usually with quite a bit of questioning coming from the Bench). The Judges then either give a judgment immediately or reserve the judgment. When the judgment is reserved the parties are notified when the judgment is ready and they once again appear in court to receive the judgment. If the Judges do not agree the matter is referred to the Full court consisting of three Judges. It can take some time before the matter is heard by the Full Court and the parties appear and present arguments to that court. The decision of the majority of Judges in the Full Court is the decision of the court.

The court of appeal has wide powers on appeal and can confirm the lower court’s decision or set it aside or amend it.

Convincing arguments must be made before the court of appeal will interfere with a lower court’s decision. A further process can be followed if the appeal fails whereby special leave may be obtained to appeal to the Supreme Court of Appeals but that is a subject for another article.

It makes sense for an Appellant to appoint a competent legal representative to make valid submissions and arguments on his/her behalf and to ensure compliance with procedural aspects during the appeal process.

There are technicalities that can arise during the process but in general the process is one geared to give an accused person the right to appeal subject to the limitations contained in the Criminal Procedure Act and an application of the rules applicable to the appeal process.

For a chart that describes the basic process click here

  

 

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