Appealing Against a Supreme Court Decision (Tas)

An offender who is convicted by a jury or sentenced after pleading guilty in the Supreme Court has a right to appeal to the Court of Criminal Appeal. There are several requirements for the appellate division to re-examine a case. This article outlines the process for appeals to the Supreme Court of Tasmania.

Grounds For Appeal

Under section 407 of the Criminal Code Act 1924, an appeal must be made on an acceptable grounds, including:

  • Appealing the conviction on a question of law;
  • With leave from the court, against the conviction on a question of fact, a combination of law and fact, or another sufficient ground for appeal; or
  • With leave from the court, against the sentence.

The grounds for the appeal must be conveyed to the court upon application for appeal. The appellant must lodge a notice of appeal with the Court of Criminal Appeal within fourteen days of the conviction or sentence date. If the appeal is not lodged by the deadline, the appellant must apply for an extension.

An appellant cannot have their case completely reheard by the Appeal Court. Instead, the emphasis is on presenting an argument on the appeal grounds. For instance, an appeal may focus on one or more of the following grounds:

  • The jury’s verdict should be set aside as unsupportable or unreasonable;
  • There was an incorrect decision on a question of law; or
  • There was a miscarriage of justice.

An appeal hearing typically focuses on facts and arguments arising from the transcript of the original trial. However, if the appellant has fresh evidence, they can present this to the court in the form of witness affidavits. These affidavits outline what the witness would say if there was a new trial. Even if the court finds there is substance to the appellant’s argument on a point of law, it may still dismiss the appeal if the court decides that there was no substantial miscarriage of justice.

Appeal Against Sentence

An offender can appeal not only their conviction but also their sentence. The Court of Criminal Appeal can reduce or amend the sentence if it finds the punishment too severe. By the same token, there is a danger that the Court can increase the sentence if it feels that the original sentence was too lenient. The Crown can even appeal a sentence imposed by the trial judge if it feels that it is insufficient given the charges.

In fact, there are several reasons why an incarcerated appellant should carefully deliberate before appealing. Not only can the Appeal Court increase the original sentence, but any time the appellant spends waiting in jail for an appeal hearing may not count towards their sentence. As an appeal can take several months to reach Court, the appellant in custody may end up serving considerable extra time in prison.

The Hearing

Generally, an appellant is entitled to be present in Court for their appeal. The hearing will consist of submissions from the appellant (or their lawyer) followed by submissions from the Crown.

The appellate judge then passes judgment, although decisions are often ‘’reserved’ while the judge considers all the arguments. If an appellate is unhappy with this judgment, they can make an appeal to the Full Court of the Supreme Court. From there, an appellant can only appeal on a point of law to the High Court with special leave.

Second Appeal

A 2015 amendment to section 402A of the Criminal Code allows a convicted person to seek leave to bring another appeal to the Court of Criminal Appeal. This second appeal is only possible when the convicted person has fresh or compelling evidence. If the Court feels there has been a substantial miscarriage of justice, it can use the new provision to quash the original conviction and order a new trial or direct a verdict of acquittal. 

Neill-Fraser v Tasmania [2021] was the first case to use this new provision to make a second appeal against a conviction. Susan Blyth Neill-Fraser was convicted of the murder of her partner Bob Chappell on board their yacht in 2009. The prosecution’s case was circumstantial, and neither the murder weapon nor Mr Chappell’s body was ever recovered. She was sentenced to 23 years imprisonment and was unsuccessful in appealing to the appellate division. The Appellate Court concluded that the verdict was not unsafe and there was no miscarriage of justice.

Ms Neill-Fraser sought a new appeal recently on the grounds that there had been a miscarriage of justice. She claimed in her second appeal that compelling evidence was not adduced at trial. At the new hearing, the judge dismissed the appeal on the grounds that the jury would not have acquitted the appellant if the evidence had been presented at trial.

The criminal law solicitors at Go To Court can answer any further questions you have about appealing a Supreme Court decision. We can also provide experienced representation during an appeal hearing on a point of law or fact. Please contact our team without delay on 1300 636 846.


Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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