Last updated 21 December 2016
A person convicted of an offence on indictment may appeal to the Court of Appeal on any question of law pursuant to s 668D(1)(a) of the Criminal Code Act 1899 (Qld) (Criminal Code). An appeal against conviction must be lodged within one calendar month of the verdict’s delivery (s 671(1) Criminal Code).
There are many grounds of appeal, including the unsafe and unsatisfactory nature of the verdict, an error in a trial judge’s directions to the jury or rulings on a voir dire that may lead to a miscarriage of justice. If the appeal is allowed, then the Court of Appeal quashes the conviction and either orders a retrial (s 669 Criminal Code) or directs that a verdict of acquittal be entered (s 668E(2) Criminal Code).
A person sentenced for an offence on indictment may only appeal against the severity of the sentence imposed with leave of the Court of Appeal (s 668D(1)(c) Criminal Code) on the basis of the sentence being manifestly excessive or an error being made by the sentencing judge. An application for leave to appeal against sentence must be lodged within one calendar month of the sentence being imposed (s 671(1) Criminal Code). Whilst the Court of Appeal may either decrease or increase a sentence on appeal by a defendant (s 668E(3) Criminal Code), in practice, the court does not increase the sentence without first notifying a defendant in order to give an opportunity to withdraw the appeal.
The general settled law was that the Crown could not appeal against a not guilty verdict. Further, once a person was acquitted it was not possible to retry the person (the Rule against Double Jeopardy). However, ch 68 of the Criminal Code allows for the Director of Public Prosecutions to apply for a retrial in charges of murder where there is fresh and compelling evidence, or of offences punishable for life or 25 years or more if it meets the definition of a tainted acquittal.
The Attorney-General may also appeal to the Court of Appeal against any sentence for an indictable offence, whether dealt with on indictment or summarily (s 669A(1) Criminal Code), on the basis of its manifest inadequacy. A ruling staying an indictment can also be appealed by the Attorney-General (s 669A(1A) Criminal Code). Other matters of law may be referred to the court by the Attorney-General (ss 669(2), 669(2A) Criminal Code).
The Court of Appeal can extend the time in which to lodge an appeal against conviction or application for leave to appeal against sentence (s 671(3) Criminal Code). This usually only occurs where the potential appellant can show good reason for the delay, or that to deny the opportunity to appeal would result in an obvious miscarriage of justice.
Appeals are generally decided on the issues arising from the evidence at trial. However, the court may receive further evidence if necessary or expedient in the interests of justice (s 671B(1) Criminal Code).
No costs are awarded in criminal appeals (s 671F(1) Criminal Code). An incarcerated appellant may attend at the appeal if they wish, unless the issue involves a question of law alone (s 671D(1) Criminal Code).
An appeal from the Queensland Court of Appeal lies to the High Court of Australia. However, special leave to appeal to the High Court must be obtained from that court before such an appeal can be made.
A Governor’s pardon
The Governor, as directed by cabinet, has the power to pardon any convicted person and may refer the whole or part of the case to the Court of Appeal for assistance in the exercise of this prerogative power (s 672A Criminal Code Act). This only occurs in the most exceptional circumstances.