The ins and out of appealing a court decision
With SA MP Troy Bell lodging an appeal against a jury’s recent guilty verdict, Morry Bailes explains the appeal process and the standards required for proof beyond reasonable doubt.
How does an appeal work in the criminal justice system in South Australia? This question is as relevant to the matter of Troy Bell as it is to many appeals heard in our court system on a regular basis.
Courts sit in two ways in Australia. The first is a court sitting in its original jurisdiction, or in first instance. That is to say, the court that conducts the original trial, hearing evidence from witnesses before making findings of fact and applying relevant law to arrive at an outcome. In criminal trials, the applicable standard of proof, is proof beyond reasonable doubt, the onus of proof resting on the prosecution alone. The defendant is required to prove nothing.
In criminal jury trials, whilst a jury is directed by a judge about the law, the jury not the judge is the arbiter of fact. That is to say, the jury, having heard all the evidence, and being directed by the judge on the applicable law and applicable standard of proof, then makes findings of fact and provides it’s verdict or verdicts.
Another way to think of a court exercising its original jurisdiction, is that it is dealing with a matter that has not been heard elsewhere.
Trials in first instance occur before magistrates in the Magistrates Court where there is no jury, or in higher courts, the District or Supreme Courts, where a trial may be heard by judge alone or by judge and jury. Troy Bell’s trial was by judge and jury in the District Court.
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The second way a court may sit is as a court of appeal. An appeal does not usually involve the hearing of any fresh evidence, but is rather to review whether the court in first instance got it right.
Although the High Court of Australia does have original jurisdiction where the Commonwealth is a party, or States litigate against States—usually involving constitutional issues—or when a matter involves an international treaty, or representatives of a foreign country, it usually sits as a court of appeal, otherwise known as an appellate court.
To have an appeal heard by the High Court, it is first necessary to seek leave from the Court to proceed to an appeal. Because the High Court is a busy jurisdiction, and does not wish to determine points of law that are already well established as a matter of jurisprudence, obtaining leave from the High Court to appeal can be tough. Procedural changes made last year have further tightened the already strict leave requirements in the High Court.
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Leave may also be required to appeal to the Court of Appeal in South Australia. If the appeal concerns a ground of law, leave is not required. For appeals against a conviction on a factual ground, leave is required. That said, if leave is required, it is a much easier hurdle to overcome than in the High Court, and it would be unusual for leave to be refused if one sought to appeal the verdict of a jury trial on a factual ground. An appeal may of course involve both questions of fact and law. Thus leave may be required to argue some grounds of appeal but not others.
The mechanical means by which an appeal proceeds is to lodge with the registry of the Court of Appeal a Notice of Appeal together with supporting documents, outlining the intended grounds of appeal, and the arguments and cases to be relied upon. The matter is then listed before the court. As a matter of practice, the Court of Appeal generally hears any arguments on leave to appeal at the same time as it hears the appeal proper, but a leave to appeal application may be heard and determined separately if that is considered appropriate in the circumstances of a particular case.
The appeal itself is heard by anywhere between 2 – 5 judges. Each judge may choose to write their own reasons even though they may reach the same end result. Often however there is a lead judgement with which other judges may concur, and may add comment. If the decision is not unanimous, a dissenting judgement, or dissenting judgements must also be written by the dissenting judge or judges.
Prior to the establishment of the Court of Appeal by the former Marshall government, the ultimate court of appeal in South Australia was the Supreme Court sitting in it’s appellate jurisdiction and referred to, if it sat as a court hearing a civil appeal, as the Full Court, or if hearing a criminal appeal as the Criminal Court of Appeal. Now we have a dedicated Court of Appeal which itself has no original jurisdiction, and exists only to hear appeals from courts of original jurisdiction. That is the forum which will hear Troy Bell’s appeal assuming leave is granted, if required.
Grounds of appeal argued by defence lawyers following a finding of guilt by a jury (not specific to Troy Bell’s matter) may be very varied, and can include arguments that the presiding judge erred by allowing certain evidence to be led by the prosecution that for evidentiary reasons the defence assert ought to have been excluded, that the judge erred in the directions given to the jury, to the question of whether a jury verdict given all the facts and circumstances and the relevant standard of proof, was sound. Such an example played out in the matter of George Pell who was tried by jury, found guilty, but who ultimately was exonerated by a unanimous decision of the High Court overturning the Victorian Court of Appeal. It found that the jury in that case ought never to have found the allegations proved beyond reasonable doubt. When the Victorian Court of Appeal handed down its decision it was not unanimous, with the dissenting judge effectively reaching the same position that the High Court ultimately arrived at.
We will not know and ought not speculate on the grounds of appeal to be argued and relied upon by Troy Bell. All will be known once the notice of appeal is lodged and the matter heard, in accordance with the principle of open justice. But if the Pell matter taught us anything it is that proof beyond reasonable doubt is interpreted by appellate courts as a very high standard of proof indeed, not to be departed from, and that it ain’t over ‘til the appellate process is exhausted. It was also a demonstration, against a barrage from some in the commentariat at the time, of the independence of the courts, and the power of the rule of law.
Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia
