(1) An appeal or application for leave to appeal must be dealt with by way of a hearing involving oral submissions unless the Judge or court making the decision on the mode of hearing determines, on the basis of the information contained in the notice of appeal, notice of application, or other written material provided by the parties, that the appeal or application—
(a) can be fairly dealt with on the papers; and
(b) either has no realistic prospect of success or clearly should be allowed.
(2) In determining whether an appeal or application can be fairly dealt with on the papers, the Judge or court may consider any matters relevant to the decision on the mode of hearing, including such matters as—
(a) whether the appellant has been assisted by counsel in preparing the appeal or application:
(b) whether the appellant has been provided with copies of the relevant trial documentation:
(c) the gravity of the offence:
(d) the nature and complexity of the issues raised by the appeal or application:
(e) whether evidence should be called:
(f) any relevant cultural or personal factors.
(3) A Judge of the Court of Appeal, acting alone, may make a decision about the mode of hearing a particular appeal or application, but no Judge acting alone may reverse a decision on mode that has been made by the court.
(4) The Court of Appeal may, at any time, either on its own initiative or on the application of any party, change the mode of hearing a particular appeal or application to an oral hearing, having regard to any written submissions made by the parties concerning the mode of hearing.
(5) The court or Judge making the decision on the mode of hearing must apply section 392B(2) to (5) (with all necessary modifications) in the same way as the court would apply them in determining an appeal or application for leave to appeal.
(6) Every decision about the mode of hearing an appeal or application must be in writing, be accompanied by reasons (unless the decision is that the hearing will be an oral hearing), and be provided by the Registrar to the parties.
(7) This section does not apply to an application to the Supreme Court for leave to appeal to it.
Section 392A: inserted, on 10 December 2001, by section 8 of the Crimes (Criminal Appeals) Amendment Act 2001 (2001 No 92).
Section 392A(7): added, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).