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CHAPTER 26 – APPEALS FROM THE DISTRICT COURT

26.1 INTRODUCTION

Judges and Magistrates are human and, like all humans, sometimes make mistakes. It is therefore important that the justice system provides for appeals from decisions and orders that are made by Judges and Magistrates who preside at hearings and trials. Learning that a decision is being appealed should not trigger a negative response on the part of a Magistrate. It is simply part of the job. It is also a necessary safeguard that makes any justice system stronger and fairer. Appeals from the District Court also assist in clarifying the law, by producing binding precedents that interpret and apply statutes and cases.

Appeals sometimes require that leave first be obtained from the court to which the appeal is made. Appeals to the Supreme Court provide instances of this. However, an appeal from the District Court, subject to certain statutory limitations, may be made as a matter of right, that is, an appeal may be made without first obtaining leave of the court to which the appeal is being made. Appeals are made to the National Court. Most of the statutory provisions relating to appeals are found in Pt XI of the District Courts Act. It is important for Magistrates to be mindful of the possibility that any decision or order that is made may be appealed against. This assists Magistrates to perform their duties in a way that minimises the prospect of an appeal and, when one is made, to deal with it in a way that minimises stress and difficulty in responding in accordance with the procedural requirements.

This chapter is intended to assist District Court Magistrates in the way that they deal with appeals that are taken against decisions made by them. Appeals to the District Court are not considered in this chapter. They are dealt with in Chapters 17 and 18.

26.2 WHAT MAY BE APPEALED

Section 219 of the District Courts Act provides for appeals to be made by a person who is aggrieved by a decision of the court. A person aggrieved is almost invariably a party against whom an unfavourable decision has been made. The decision appealed against can take the form of a conviction in a criminal case, or the dismissal of an information or complaint. Other orders may also be appealed. For instance, a decision that awards damages to a party in a civil case, but which the party considers to be inadequate, may be appealed. Similarly, a custody or maintenance decision may not involve the dismissal of a complaint, yet a party may feel aggrieved and may appeal.

Section 219 provides that the Public Prosecutor may not appeal a dismissal of an information. This means that any error in the acquittal of an accused for a criminal offence is automatically resolved in favour of the accused. However, a sentence for an indictable offence triable summarily under s 420 of the Criminal Code may be appealed by the Public Prosecutor. A person who has been convicted in a criminal case may always appeal, regardless of the type of offence. Although the person aggrieved is normally one of the parties, the Secretary of Justice may, where he or she is of the opinion that a matter is of sufficient public importance, intervene in an appeal or pursue an appeal pursuant to s 219(3) without the party’s permission.

An appeal must normally be commenced within a month of the date of the decision that is being appealed. However, the National Court may extend the time of appeal pursuant to s 231 of the District Courts Act. There is no limitation on the extension of time that may be granted. This means that it might be several months after a decision is made that a Magistrate first becomes aware that the decision is being appealed.

26.3 MINIMISING THE CHANCES OF AN APPEAL

Preparing for an appeal starts at the initial hearing or trial. Every decision, whether interlocutory or final, whether criminal or civil, is the basis of a possible appeal. Being conscious of this fact can assist a Magistrate in conducting a hearing in a way that is less likely to form the basis of a successful appeal.

Paying close attention to the evidence and the law, and carefully applying the facts to the applicable law, can minimise the chances of a successful appeal. An unsuccessful party who is satisfied that a Magistrate has considered the case carefully and has applied the law properly, is less likely to appeal that decision, even though the party may be unhappy with the outcome. Therefore, carefully explaining to the parties how and why a decision is made can minimise the chances of even an unsuccessful appeal.

When evidence is being given in court, it is important to make careful notes of the evidence and, where evidence is internally inconsistent or conflicts with that of other witnesses, to make findings of credibility and to make notes regarding these findings. This helps a Magistrate who later becomes aware of an appeal, but whose personal memory of the case has faded to some extent.

26.4 HOW AN APPEAL IS MADE

An appeal is commenced in accordance with s 220 of the District Courts Act by filing a notice of appeal in form 71. The notice of appeal must be filed with the clerk of the District Court that made the order appealed against. The notice must be served on the respondent and on the Registrar of the National Court. Section 238 sets forth requirements for service of the notice of appeal.

26.5 DUTIES OF MAGISTRATE WHEN APPEAL IS COMMENCED

26.5.1 Recognisance or deposit of money

One of the first duties of a Magistrate, after the filing of a notice of appeal, is to make a determination in respect of a recognisance and surety or deposit of money. Section 222 of the District Courts Act provides that a recognisance with a surety must be provided, or a sum of money deposited with the clerk of the court that made the decision being appealed against. This is to provide assurance that the appellant will:

·           prosecute the appeal;

·           abide by the order of the National Court; and

·           pay costs that may be awarded against the appellant by the National Court.

The amount of money involved in this process should be determined in accordance with the circumstances of the appellant, and not in accordance with the Magistrate’s opinion about the likelihood of success of appeal. In this respect, it is similar to the issue of bail in a criminal hearing, where the likelihood of conviction has little relevance.

26.5.2 Bail

If the decision being appealed against is a conviction or sentence that entails the incarceration of the appellant, the matter of the appellant’s release from custody may arise. Section 223 of the District Courts Act provides discretion on the part of a Magistrate to grant bail. The onus of proof and other considerations relating to bail after conviction are covered in Chapter 10: see 10.3.3 and 10.5.2.

26.5.3 Documents and materials to be forwarded to National Court

In order for the National Court to consider an appeal, it is necessary that as many details as possible, about the decision being appealed, be forwarded to the National Court. Section 225 of the District Courts Act provides that the following be certified by the clerk of the District Court and forwarded immediately after the notice of appeal is lodged:

·           Copy of conviction, order or adjudication;

·           Copy of reasons for the conviction, order or adjudication if reasons were given at the time the decision was pronounced;

·           Copy of the complaint (information);

·           Copy of depositions;

·           Copy of all other proceedings of the court that made the decision being appealed against;

·           Exhibits, except in respect of those exhibits that are impractical to forward, in which case a list and description of the exhibits are required.

In cases where an appeal is against a decision for which reasons were not given at the time, a Magistrate has an obligation under s 225 to forward a report setting out the reasons for the making of the decision. In such cases, it might be a month (or even longer when an extension of time is granted) before a Magistrate is called upon to forward a report. With the passage of this amount of time, it is understandable that a Magistrate may have only faint personal recollection of the facts, the findings of credibility and other considerations that went into the making of the decision. For this reason, it is vitally important that a Magistrate has sufficiently detailed notes to be able to compose a complete report. Where notes are lacking in detail, there is a risk of a loss of completeness or accuracy in the report – either of which make it more difficult for the National Court to reach a proper decision on appeal. A lack of sufficient detail in the notes made by a Magistrate regarding the decision that is being appealed, inevitably creates stress for a Magistrate who is called upon to forward a report.

The obvious lesson from this is that Magistrates are best prepared for appeal when they have already given reasons for the decision being appealed against. Alternatively, it is imperative that detailed notes and records are kept that will allow a Magistrate to write a report with minimal recourse to his or her independent memory.

In cases where a person is brought before the National Court on habeas corpus, it is necessary, pursuant to s 239 of the District Courts Act, that a Magistrate, upon notice, provide to the National Court certified copies, or the original, of:

·           the conviction on which the commitment was founded; and

·           the depositions and information intended to be relied upon.

In cases where an application for judicial review is against a committal for trial or sentence, and, under s 118 of the District Courts Act, all relevant documents have been forwarded to the Public Prosecutor, the National Court may waive notice to the Magistrate to produce the documents.

26.6 AFTER THE APPEAL

Depending on the outcome of an appeal, there may be duties to be performed by the District Court Magistrate or clerk after the appeal. Sections 234 and 234 of the District Courts Act concern the payment of costs on an appeal. If the National Court makes an order for costs, it may or may not specify when the costs must be paid. Where no time is specified, the costs are payable within seven days of the making of the order for costs.

Costs are to be paid to the Registrar of the National Court. Where costs are not paid on time, the party entitled to costs may apply to the Registrar of the National Court for a certificate to that effect. The certificate, when produced to a Magistrate of the District Court, may be enforced as an order for the payment of money: see 20.2.