19. Prosecution appeals

19.1 Introduction

The prosecution has a right to appeal in certain circumstances. This right will always be exercised with restraint and only where there is a reasonable prospect of success.

19.2 Appeals against sentence

Section 401(2)(c) of the Criminal Code enables the prosecution to appeal a sentence of the Supreme Court to the Court of Criminal Appeal.

The prosecution’s right to appeal against sentence should be exercised sparingly and it is the policy of the Director of Public Prosecutions not to institute such an appeal unless it can be asserted with some confidence that the appeal will be successful. The primary purpose of a Crown appeal was stated in Director of Public Prosecutions v Bradford [2016] TASCCA 14 by Pearce J at [14]:

The underlying principle is that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]-[2]. It is not the function of the Court to overturn a sentence merely because it is light or lenient. The sentence must be shown to be manifestly inadequate to the point of clear error. Appellate courts should exercise deference and restraint. However, when appropriate cases are brought on appeal, it is for this Court to maintain sentencing standards and levels: Director of Public Prosecutions v P {2007} TASSC 51 per Crawford J (as he then was) at [18]. Crown appeals serve also to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen [1994] HCA 49, 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]-[116].

In considering a prosecution appeal against sentence it is to be borne in mind that the sentence for a specific offence will vary according to its nature, the circumstances of its commission, the antecedents of the prisoner and the effect on the victim. Consequently, for any given offence there exists a range of legitimate penalty options. An appellate court will not interfere with the exercise of a judge’s or a magistrate’s sentencing decision unless an error in the exercise of that discretion can be demonstrated. In practical terms, the Court must be satisfied that the sentence imposed falls clearly outside the appropriate penalty range and may consequently be characterised as manifestly inadequate or, in other words, plainly unjust. Mere disagreement with the sentence passed is insufficient.

In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J, with whom Blow CJ and Porter J agreed … summarised the relevant principles at [8] as follows:

As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v R (2000) 202 CLR 321 per Kirby J at [57]–[60]. Where no specific error is alleged, this court must be persuaded of error of the second type referred to in House v R (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is “unreasonable or plainly unjust“. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v R (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v R (1999) 195 CLR 665 at [15], and the other cases referred to by this court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be “accorded a wide measure of latitude“: Postiglione v R (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v R (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v R(2010) 242 CLR 520 at 539.

A notice of appeal against a sentence should be made within 14 days of the sentence being passed (s407(3A)).

In all cases of serious violence, sexual assault and serious drug crimes, the prosecutor with conduct of the case should consider whether the sentence is adequate in accordance with the above principles (even if they were not present in court when the sentence was pronounced). If the prosecutor believes that the sentence was adequate then a short file note should be entered on the file confirming that is the case. On the other hand, if the prosecutor considers the sentence may be inadequate, he or she should consult with a Principal Crown Counsel to determine whether a submission should be made to the Director to appeal the sentence.

19.3 Appeals against conviction

Section 401(2)(b) of the Criminal Code enables the prosecution to apply for leave to appeal an acquittal on a question of law. Thus, there can be no appeal on a question of fact or the reasonableness of the verdict. This alters the common law position that a person acquitted of a crime cannot be prosecuted for the same crime again. Therefore, such appeals should only be instituted sparingly. Generally speaking, the appeal of an acquittal will only be considered where the alleged error of law is of substance, is of general importance and not just limited to the individual case or where it has led to a significant miscarriage of justice.

A notice for an application for leave to appeal a conviction must be made within seven days (s407(3)(b)).

All appeals to the Court of Criminal Appeal, whether against sentence or acquittal, must be approved by the Director.

19.4 Written submissions

Prosecutors appearing on an appeal, irrespective of whether it is against conviction or sentence, should forward their draft written submissions to the Director prior to filing.

19.5 Motions to review

Section 107 of the Justices Act 1959 allows “[a] person who is aggrieved by an order of justices” to “upon notice in accordance with this section, move the Supreme Court to review that order.”

Motions to review are commonly known as lower court appeals. They are governed by Part XI of the Act. A motion to review an order of a magistrate may allege an error of fact, or law, or both.

Police brief the Office to appear as both counsel for the applicant (when police have moved for an order to be reviewed) and as counsel for the respondent (when a defendant has sought a review).

When Tasmania Police brief the Office to appeal a decision of a magistrate, usually on the basis of an acquittal of a defendant by a magistrate, or alleging a sentence is manifestly inadequate, a police officer (usually a prosecutor) will forward a police file to Senior Crown Counsel (Summary Prosecutions) for review. If it is determined that an appeal ought to be instituted, Senior Crown Counsel (Summary Prosecutions) will prepare a motion to review notice, file the notice in the relevant Supreme Court Registry, and request a police officer to serve it on the respondent (defendant).

A motion must be made, filed and served within 21 days after the magistrate’s order that is sought to be reviewed (s107(3)). The Clerk of the Court of Petty Sessions ought to also be served with a copy of the motion (s107(3)(b)(ii)).

When the Office acts as respondent counsel to a motion, Senior Crown Counsel (Summary Prosecutions) will receive the motion and open a file.

Upon the filing of a motion to review, the Supreme Court will write to the Court of Petty Sessions for the issuing of prescribed materials to the parties (s109). If the Office is the applicant, the prosecutor should write to Clerk of the Court of Petty Sessions requesting a copy of the recording of proceedings be forwarded to the Supreme Court transcription service so that a transcript of the proceedings before the magistrate may be prepared.

The first return of a motion will usually be before the associate judge. The associate judge will provide directions for the future of the matter. However, it is now commonplace that the first appearance is dispensed with by consent orders between the parties and the matter is readied for hearing before a judge.

The relevant Supreme Court Registry will issue a hearing notice to the parties. Within 10 days of the hearing, the applicant must file and serve contentions of fact and law to be relied upon. Within four days of being served with those contentions, the respondent must provide contentions in response (see Practice Direction 2 of 2014).

A motion to review does not act as a stay of an order or sentence prior to determination; for that to occur, an interlocutory order seeking a stay must be sought (s109(1)(c)).

A judge will hear and determine the motion in accordance with the powers afforded to the Supreme Court (s110).

In determining a review of the conviction or acquittal of a defendant by a magistrate, a judge may not entertain a ground alleging that the verdict of the magistrate was “unsafe and unsatisfactory” (see Phillips v Arnold (2009) 19 Tas R 21 per Crawford CJ at [46]), although the considerations may be similar (see Smith v McDonald [2010] TASSC 26 per Wood J at [40] to [41]). Rather, the question for the court is whether it was open to the magistrate, acting reasonably and taking into account the criminal standard of proof, to come to the conclusion that he or she did (see Kent v Gunns (2009) 18 Tas R 454 per Porter J at [7]). A motion to review is not a hearing de novo, but an applicant may apply for a hearing de novo to occur (s111) (see Coppleman v Godfrey [2014] TASSC 60).

In determining whether or not to allow a prosecution review of a sentence, s110(2AA) has not displaced the residual discretion of the court to otherwise dismiss an appeal on the basis of the special considerations that attach to such a review (see Lyons v Bakes [2015] TASSC 37 per Pearce J at [11]-[17]). If a prosecution review is successful and the court proceeds to resentence, principles of double jeopardy may not be entertained by the court (s110(2AB)).

Upon determination of a motion to review, a judge may exercise any power granted under s110(2).

A person who remains aggrieved by the order of the judge following determination of the motion to review may appeal to the Full Court of the Supreme Court (s123). Such further review by the Full Court is limited to a question of law or upon the admission or rejection of evidence (see Caccavo v Collins (2014) 244 A Crim R 65).

Before an appeal to the Full Court is instituted authorisation from the Director should be obtained.