Criminal Appeals In The Supreme Court of Tasmania

A fundamental principle of the criminal system in Australia is the right for a criminal conviction to be appealed to a higher authority. An individual found guilty of a criminal offence or sentenced after pleading guilty in any Tasmanian court has a right to appeal to the appellate arm of the Supreme Court of Tasmania. This article outlines the process for criminal appeals in Tasmania.  

Supreme Court of Tasmania

In Tasmania, all serious criminal offences (also called “indictable offences”) are dealt with at first instance in the Supreme Court of Tasmania. The Magistrates Court deals with less serious offences. When the Supreme Court first hears a criminal matter, it is usually referred to as the Criminal Court.

When a defendant pleads not guilty to a serious criminal offence in the Criminal Court, the case is heard by a twelve-person jury. If convicted, a Justice decides the offender’s sentence. A Justice also sentences an accused who chooses not to go to trial and instead pleads guilty.

Appeals To Court Of Criminal Appeal

In its appellate jurisdiction, the Supreme Court hears criminal appeals from the Magistrates Court, Children's Court and Supreme Court. Appeals from a Supreme Court decision are typically heard by at least three Supreme Court judges, constituting the Court of Criminal Appeal of Tasmania.

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

The Hearing

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

An appellant cannot have their case completely reheard on appeal. 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. 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.

If the appellant believes that the appellate court was wrong on a point of law, he or she can request special leave to appeal to the High Court.

Grounds For Appeal

Under section 401 of the Criminal Code Act 1924, an appeal against a criminal verdict in Tasmania must be made on one of the acceptable grounds, such as:

• 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.

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 Court of Criminal Appeal increase the original sentence, but any time spent waiting in jail for an appeal hearing may not count towards their sentence. As an appeal can take several months to reach the court, the appellant in custody may end up serving considerable extra time in prison.

Second Appeal

A 2015 amendment to section 402A of the Criminal Code allows a convicted person to seek leave to bring a second 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. The appellant was sentenced to 23 years imprisonment and was unsuccessful in her first appeal. The appellate court concluded that the original verdict was not unsafe and that there had been 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 the original trial. At the new hearing, the judge dismissed the appeal on the grounds that the jury would not have acquitted the appellant if the new 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 in Tasmania. 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.