Court of Appeal / Court of Criminal Appeal



The Court of Appeal

The Court of Appeal determines civil appeals from most State courts and applications for judicial review in relation to “specified tribunals”. Proceedings involving constitutional and other cases of general public importance may be commenced in the Court or referred to it for hearing at first instance. Figure 10 depicts the gateways for appeals from final judgments and orders and the Court’s supervisory jurisdiction.

The Court of Appeal comprises the Chief Justice, the President and ten Judges of Appeal. The Chief Judge at Common Law
and the Chief Judge in Equity are ex officio members of the Court who sit from time to time.

Mr Justice Powell AM retired on 8 November 2002.

Justice Santow OAM was appointed a Judge of Appeal in February 2002. Justice D A Ipp was appointed a Judge of Appeal in November 2002.





During 2002 the Honourable Justice M L Pearlman AM, the Honourable Justice D A Ipp, the Honourable Justice M W Campbell, the Honourable J E H Brownie QC, the Honourable J D Davies QC, the Honourable J H Mathews and the Honourable M L Foster QC held commissions as Acting Judges of Appeal. Judges of the Supreme Court were appointed ad hoc from time to time as additional Judges of Appeal.

On 175 days the President or a Judge of Appeal sat in the Court of Criminal Appeal. This meant that 260 judge-days were allocated to the Court of Criminal Appeal because of the practice of allowing one day’s reading time for each sitting day plus judgment writing time, wherever practicable.


ORGANISATION OF BUSINESS

New cases are initially scanned for competency and, if necessary, referred back to legal representatives to prove competency or seek leave to appeal.

Applications for leave to appeal are examined to see whether they are suitable to be heard concurrently with the argument on the appeal. The options of filing a holding notice of appeal or a holding summons remain popular with litigants and their advisers.

Appeals are listed for a directions call-over before the Registrar when a notice of appeal is filed.

At that call-over an appeal will be listed for hearing if the appellant’s submissions have been filed. There is no holding list. Case management may be ordered for lengthy or complex appeals. Urgent cases are expedited and can be heard almost immediately if appropriate.


OPERATIONAL STATISTICS

The Court of Appeal maintains a database to monitor the caseload and performance of the Court. The input and disposal statistics are reported on a monthly basis and reviewed at Court of Appeal Judges’ meetings, which occur approximately monthly.

New filings
There are three types of new filings: notices of appeal, summonses for leave to appeal and summonses for other relief (usually administrative law review). Holding notices of appeal and holding summonses for leave are not counted within the active caseload but are included in the Court’s overall workload for statistical or time management purposes. Leave applications are not counted within the active caseload until such time as leave to appeal has been granted and a notice of appeal filed. There was one return from the High Court of Australia during the year, the matter of Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22. During 2002 there was a total of 446 active cases commenced, compared with 505 during 2001 and 483 in 2000 (see Table 12).


Disposals
Since January 2000 the disposals recorded have been active cases that reach final adjudication or are otherwise finalised in the Court. These are shown at Table 13.



Disposals
Since January 2000 the disposals recorded have been active cases that reach final adjudication or are otherwise finalised in the Court. These are shown at Table 13.


Pending caseload
At the beginning of 2002 there was an active caseload of 337. By the end of the year this number had been reduced to 289. Figure 11 shows the Court’s pending active caseload by month during 2002.



Prior to 2000, the pending caseload statistics included holding appeals and those holding appeals deemed discontinued. These are no longer included in the active pending caseload statistics because they do not reflect any delay within the control of the Court. To enable a comparison, the statistics for 1998 and 1999 have been recalculated to exclude holding appeals and those discontinued. Figure 12 reveals the trend over the past five years. It is evident that there is now a lower pending active caseload than at any other time during that period. During 2002 the Court disposed of 494 active cases, compared with 627 during 2001.



Time standards
In January 2000 the Chief Justice announced that the performance of the Court of Appeal was to be measured against time standards.

Table 14 shows the time standards adopted for 2002 and the results obtained for appeals, summonses for other relief and refused leave applications during the year. Time to finalisation is time between commencement and date of judgment, settlement, discontinuance or striking out. Commencement is the date of filing the substantive notice of appeal or, if leave to appeal is required, the summons for leave to appeal. The 6-month standard was easily achieved for leave applications and other summons matters. The 12-month time standard was achieved across all classifications of cases. The 18-month standard proved difficult to achieve.

For 2003, the time standards will be: 50 per cent of cases disposed of within 6 months, 90 per cent of cases disposed of within 12 months and 100 per cent of cases disposed of within 18 months.


Leave applications
Leave applications are a significant component of the work of the Court of Appeal. If the parties agree, these applications can be dealt with on the papers. Fifteen applications were dealt with on papers pursuant to Part 51 rule 4D of the Supreme Court Rules. Of these, 13 were refused and two granted. If one party seeks it, the papers will be referred to a Judge to consider whether a “rolled-up” hearing is appropriate: if it is, the application for leave and the contingent appeal hearing will be listed concurrently. There were 61 such cases dealt with where leave was granted and appeals heard concurrently.


OTHER ASPECTS OF THE COURT’S WORK

The High Court of Australia granted special leave to appeal in 17 cases from the NSW Court of Appeal during 2002.

The Judges of the Court of Appeal attended various conferences of relevance to their functions during the year (refer also to the chapter titled “Other Judicial Activity”). Details of speeches given are contained in the Supreme Court’s web pages. The President spent a three-month sabbatical as a Visiting Professor of Law at Macquarie University Law School.


The Court of Criminal Appeal

The bulk of the Court of Criminal Appeal’s work is to determine appeals from proceedings in the Supreme and District Courts challenging convictions and/or seeking to modify sentences imposed at trial.

When determining appeals, the bench is generally comprised of three or more Judges as the Chief Justice directs. Since 1994, a bench of two Judges may hear certain sentence appeals where no issue of principle is disputed.

The Judges who sit in the Court of Criminal Appeal are the Chief Justice, the President and Judges of the Court of Appeal, and the Chief Judge and Judges of the Common Law Division.


ORGANISATION OF BUSINESS

Sittings of the Court are organised on a roster basis, having regard to the regular judicial duties and commitments of those who sit. During 2002, the Court sat during each week of the law term,with two or more benches sitting on some days.

The listing of appeals is fixed by the Registrar, who conducts a regular call-over of cases, usually at fortnightly intervals. The Registrar also gives directions for the filing of written submissions and preparation of other material prior to hearings.

Registry staff attend to the processing of all documentation, both prior to and following the hearing of each appeal, as well as maintaining all files and records concerning the operation of the Court.


NEW APPEAL PROCEDURES

In December 2001 Parliament passed amendments to the Criminal Appeal Act 1912, specifically altering the provisions of section 10, which deals with the method and time for the making of an appeal. The amendments were proclaimed to commence on 1 July 2002. The Court has also amended the Criminal Appeal Rules in conjunction with the legislative changes.

The amendments to the Criminal Appeal Act and to the Rules substantially changed the procedure for initiating appeals against conviction and applications for leave to appeal against severity of sentence.

Under the new procedures, prior to a notice of appeal being filed, a notice of intention to appeal is lodged. The notice of intention has an effective period of six months and any notice of appeal is to be filed within that time. Failure to do so results in the notice of intention lapsing.

The effect of this procedure is that most of the tasks that contributed to delay in fixing cases for hearing have to be attended to before a notice of appeal can be filed. This facilitates a more streamlined and faster listing process. The impacts of the amendments are manifest in the various Figures and Tables reproduced in the following pages.

The circumstances that, in the past, typically led to appeals being abandoned are now dealt with before a notice of appeal is filed. Rather than filing a notice of abandonment, any potential appeal which is not to be pursued lapses at the expiration of the period of effect of the notice of intention. As a result, in the future, fewer appeals will be filed.

A total of 465 notices of intention were lodged during the second half of the year. From this number, some 17 were extinguished due to the filing of a notice of appeal leaving 448 pending as at 31 December 2002.

By reason of the introduction of the new procedures, statistics for 2002 are not comparable with those for previous years.


OPERATIONAL STATISTICS

New filings
An analysis of the types of work coming to the Court during 2002, compared with that in 2000 and 2001, is given in Table 15.

There was one return from the High Court of Australia during the year, the matter of The Queen v Chai [2002] HCA 12.



Total new filings in the Court of Criminal Appeal from 1998 to 2002 are shown in Figure 13. The decline in 2002 reflects the new procedures introduced in July. The figure cannot be compared with previous years.



Disposals
Table 16 shows an analysis of the types of cases finalised by the Court of Criminal Appeal during 2002 compared with those in 2001 and 2000. Figure 14 shows total finalisations for the years 1998 to 2002.





Pending caseload
During 2002, the Court sat for 211 days, compared with 233 days during 2001, representing a decrease in sitting days of approximately nine per cent. Notwithstanding sitting on fewer days, the Court disposed of a greater number of cases than the previous year as indicated in Table 16. The pending caseload as at 31 December 2002 is analysed in Table 17 and compared with the situation at the end of 2000 and 2001.



The reduction in the number of cases awaiting listing demonstrates the effect of the new appeal system. Where a notice of appeal is filed, following the filing of a notice of intention, the case is placed in the next Registrar’s call-over and a hearing date allocated. The majority of the 166 cases awaiting listing at 31 December 2002 are cases from the former system.

The trend in the pending caseload over the last five years is shown in Figure 15. By reason of the introduction of the new procedures, the 2002 figure is not comparable with previous years.



Time standards
Performance against the standards for 2002 is set out in Table 18. The time standards for 2002 will also apply during 2003, pending review after the effects of the new procedures can be assessed.

Until the commencement of amendments to the Criminal Appeal Act and Rules on 1 July 2002, the ability of the Court to achieve its time standards used to be adversely affected by delays in other parts of the criminal justice system. Criminal appeals were generally filed immediately after the first instance trial. Indeed, before its amendment, section 10 of the Criminal Appeal Act 1912 required an appeal to be filed within 28 days of conviction or sentence, at which stage few cases are ready to take hearing dates. This is largely because most appeals require legal aid. An assessment of merits is made before legal aid is granted. Before that assessment can occur, the transcript must be prepared and the summing up to the jury and/or remarks on sentence must be settled by the trial Judge. It sometimes takes months for this to occur. Under the former appeal rules, the assessment process often resulted in an amended notice of appeal being filed. The measurement of time taken to dispose of criminal appeals starts from the date of filing the original notice of appeal. Under the former system, for the reasons given above, many months might elapse after the filing of the original notice of appeal before the appeal would be ready to be set down for hearing by the Court.

All of the above factors continue to operate for cases filed during the first half of 2002. However, appeals lodged under the new procedures receive a hearing date, usually within two months of lodgement, at the call-over conducted immediately after the notice of appeal is filed. Although the impact of the new appeal system can be seen in the present operational statistics, it is too early to assess the full effect of the new procedure on reducing the time taken from commencement to finalisation. As most, if not all, appeals filed under the former procedure are disposed of during 2003, it is anticipated that the Court’s performance against its time standards will show significant improvement by 31 December 2003.


OTHER ASPECTS

The Court of Criminal Appeal and Crime Registry Users’ Group continued to meet during 2002. This group was established during 2001 to consider issues relating to criminal cases and criminal appeals, including factors contributing to delay in the Court of Criminal Appeal. There are a number of government agencies whose processes affect criminal appeal preparation time. Members of the users’ group review internal and inter-agency processes to identify areas for improvement. Some positive steps have been taken within agencies, especially since the introduction of the new appeal procedures.