Introduction

This paper was first presented in May 2009. It had a practical focus, as does this paper.

The reforms enacted by the Criminal Procedure Act 2012 (CPA) and the Criminal Procedure Rules 2012 (CPR) are now in force. As a reference point, readers are referred to the NZLS Seminar on the CPA (NZLS CLE Ltd May 2013). A focus of this paper will be on the new grounds of appeal and procedures.

Effective appellate advocacy requires a skill set that significantly differs from that of a trial lawyer. The focus is on questions of error, legal novelty, due process, and fairness. Subject to the reception of fresh evidence, the facts are settled. Unless a verdict or decision can be seen as unreasonable, there is no room to persuade a finder of fact of the ‗correct‘ result. These factors mean that appeal work can be intellectually challenging and rewarding. Against that, there can be a lot of hard work.

The essence of appellate advocacy is to persuade the appellate court that there is a flaw in the decision appealed from, such that the appellate court should intervene. Criminal appeals are heard by a senior judge or judges, who will have variable experience of criminal practice (but who will usually have experience as criminal trial judges). A challenge for counsel is to accurately read the bench, in order to ascertain where the focus of the argument ought to be.

The Court of Appeal deals with a considerable number of criminal appeals every year, about 400. The Supreme Court has to consider many applications for leave to appeal. As with all modern judicial institutions, these courts have limited resources. The courts are entitled to receive from counsel focused and principled argument, consistent with counsels‘ duties to the court, but firmly in the light of the client‘s instructions and best interests. Counsel cannot avoid tenuous or even hopeless appeals, and must do their best. But in such cases there are things that counsel can do, such as respect time limits, focus their argument, and assist the court by careful reference to the relevant evidence and authorities.

Competent conduct of appeals is an essential starting point for all counsel, no matter how meritorious their case. That means, as a minimum, familiarity with and adherence to practice and procedure (failure to do so can now lead to dismissal of an appeal under s 338 of the CPA 2011).

There is a tendency for some counsel to view appeals as part of the usual criminal justice process; that is to say, if the client is convicted, there must be an appeal. That approach tends to devalue the importance of the criminal appeal system in New Zealand, which gives generous scope for pre- and post-trial challenges to decisions and verdicts. Appeals should only be brought after careful thought and advice (on this topic see R v Clode [2009] 1 NZLR 312, discussed below).

This seminar is a guide to effective advocacy in criminal appeals: it offers a roadmap for moving through a criminal appeal brief, as well as reviewing some of the leading authorities and rules about practice and procedure.

Content outline

• Preliminary considerations
• Jurisdiction
• General appeals
• Appeals against pre-trial rulings
• Appeals on questions of law
• Appeals to the Court of appeal
• Sentence appeals
• Appeals to the Supreme Court
• The importance of written submissions on appeal
• Oral argument and examination