Appeals Against Verdict (NT)

In the Northern Territory, a person who receives a judgment in a criminal matter has a right of appeal. An appeal can be made against a verdict, against a sentence, or both. When a person appeals against a decision by the Local Court or Youth Justice Court, the appeal is heard by a single judge of the Supreme Court; an appeal against a Supreme Court decision is heard by the Court of Criminal Appeal, which is comprised of three judges. This article deals with appeals against verdict in the NT.

Commencing an appeal

A criminal appeal can be initiated by the defence, appealing against a conviction; or by the prosecution, appealing against an acquittal. The party that initiates the appeal is known as the appellant.

The appellant commences the appeal by filing a Notice of Appeal form with the Local Court (if the appeal is against a Local Court decision) or by filing a Notice of Appeal form with the Supreme Court (if the appeal is against a Supreme Court decision).

The form must set out the details of the decision being appealed and the proposed grounds of appeal.

Appeals grounds

Appeal grounds that are most commonly argued in appeals against verdict are the following:

• It is an unsafe or unsatisfactory verdict (meaning the verdict cannot be supported having regard to the evidence as a whole);
• That there was a miscarriage of justice;
• That there was an error of law or an error of mixed law and fact.

Leave to appeal

Depending on the nature of an appeal, it may be necessary for the appellant to seek the court’s leave to appeal. Leave to appeal is required when the appellant is arguing grounds that involve questions of fact, or questions of mixed law and fact. For example, an appeal on the ground that the verdict was unsafe or unsatisfactory requires leave to appeal, as the evidence will have to be re-evaluated (which is a question of fact).

If the court’s leave is required, the appellant must file an Application for Leave to Appeal as well as a Notice of Appeal.  

Time for appealing

An appeal must be commenced within 28 days of the date of the judgment. This time period may be extended by the court.

What powers does the court have?

If an appeal court accepts one or more of the appeal grounds, it may quash the verdict and replace it with another.

If the court finds that the conviction was unsafe but that the accused could have been found guilty of another, lesser offence, it may substitute the jury’s finding of guilt for a finding of guilt for another offence and pass a sentence to substitute the one handed down at trial.

Alternately, the court may order a new trial, rather than interfering with the verdict.

If the person should not have been found guilty but should have instead been found not guilty on the basis of mental impairment, the appeal court may quash the finding of guilt and declare the person liable to supervision under Part IIA Division Five.

If the court is not persuaded by any of the appeal grounds, it may confirm the original verdict.

Flash v The Queen

The 2020 Court of Criminal Appeal decision of Flash v The Queen concerned a defence appeal against the verdict in a murder case. The appellant had been found guilty of murder after bashing his partner to death with a brick.

There had been evidence, from the accused and others, that the accused had been extremely intoxicated at the time of the incident. The main issue was whether a miscarriage of justice had occurred because the judge failed to adequately direct the jury in relation to the accused’s intoxication and the bearing it had on whether he had the requisite intent to kill the victim or cause her serious harm.

The prosecution argued that when a male bashes a female’s head repeatedly with concrete, inflicting the level of injury suffered by the victim, his intention is clearly to kill, or at least, to do serious harm.

The defence argued that the issue was the accused’s state of mind at the time of the offence and whether it could be proved beyond reasonable doubt that he had the intention of killing or causing serious harm to the victim. It argued that the prosecution had not excluded the possibility that the accused intended to cause a lesser injury but misjudged due to his intoxication and unintentionally caused death.

The court noted that a trial judge must sum up the law in the context of the factual considerations for the jury. It is not enough to set out the legal principles and a summary of the evidence separately. It found that the trial judge had failed to draw the attention of the jury to the accused’s intoxication and how intoxication can affect a person’s intent. The judge had failed to tell the jury that if the accused was intoxicated, an inference of an intent to kill or do serious harm could not be drawn in the same way as if he had been sober. The judge did not direct the jurors’ minds to whether the appellant might have inflicted the injuries without intending to kill or do serious harm.

It found that the judge should have:

• directed the jurors that it was up to them to determine how intoxicated the accused had been;
• referred to the evidence of the accused's intoxication;
• explained that intoxication can cause a person to hit harder than they intended, or fail to appreciate the amount of damage they could do.

The court allowed the appeal.

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