This note is not part of the rules, but is intended to indicate their general effect.
These rules, which come into force on 1 May 2005, amend the Court of Appeal (Criminal) Rules 2001 (
“the principal rules”).
In general terms, the amendments—
•insert several new provisions and a new form into the principal rules relating to appeals in respect of extended supervision orders under the Parole Act 2002 (which may be made against offenders who have been convicted of certain sexual offences and who pose a real and ongoing risk of committing sexual offences against children or young persons):
•incorporate into the principal rules the procedures for appeals brought on the grounds of the conduct of trial counsel, fresh evidence, and disparity of sentences that are currently dealt with in Practice Notes issued by the Court:
•relocate the provision allowing the Court to extend or shorten any appointed period into a separate rule, as is the case in the Court of Appeal (Civil) Rules 2005:
•insert a new rule to correct clerical mistakes or errors arising from an accidental slip or omission in any judgment or order or the reasons for any judgment or order:
•make a number of other technical changes.
Rule 3 inserts a number of new definitions into the principal rules that are needed for the purposes of the new rules governing extended supervision order appeals under the Parole Act 2002 (see new rules 4(1)(f), 6(7), 8(5), 27(4A) to (4E), 29(4), (6), and (6A), 36A, and new form 8). An extended supervision order appeal is defined to mean an appeal under section 107R of the Parole Act 2002 against a decision or order made by a sentencing court under section 107I (making of an extended supervision order), section 107M (cancellation of an extended supervision order), or section 107N (extension of a short extended supervision order) of that Act.
Rule 3 also—
•amends several existing definitions in the principal rules in connection with extended supervision order appeals; and
•inserts a definition of working day (which is taken from the High Court Rules and is the same as the definition of that term in the Court of Appeal (Civil) Rules 2005).
Rule 4 provides that the principal rules apply to extended supervision order appeals. Rule 4 also makes an amendment to rule 4(3) of the principal rules that is consequential on the amendment made by new rule 45A concerning the general power to extend or shorten appointed times.
Rule 5 provides that an extended supervision order appeal must, if made by the chief executive of the Department of Corrections (chief executive), be made in form 2 or, if made by the offender to whom the order relates, be made in form 8. The Schedule of these rules sets out new form 8, which is substantially the same as form 3 (notice of appeal by person convicted) of the principal rules.
Rules 6 and 8 make minor drafting amendments that are consequential on the amendments made to the principal rules in relation to extended supervision order appeals.
Rule 7 amends rule 8(5) of the principal rules to provide that a notice or other document required to be signed by the chief executive may be signed on his or her behalf by the chief executive's delegate.
Rule 9 inserts new rules 12A to 12C into the principal rules. New rule 12A deals with the procedure for appeals brought on the ground that there was a miscarriage of justice because of the conduct of the appellant's counsel at the trial or sentencing. New rule 12B deals with the procedure for appeals brought on the ground that there was a miscarriage of justice because further evidence has become available since the trial. New rule 12C deals with the procedure for appeals brought on the ground that the sentence imposed on the appellant was not appropriate because of the disparity between that sentence and the sentence imposed on a co-offender. The procedures set out in new rules 12A to 12C are currently provided for in Practice Notes issued by the Court, which are to be revoked.
Rule 10 makes an amendment to rule 13 (documents required for general appeals) of the principal rules that is related to new rule 12C. The amendment provides that, in an appeal brought on the ground of disparity of sentence, the Registrar must obtain, for the use of the Court, certain documents relevant to the sentence imposed on the appellant's co-offender (including, for example, the pre-sentence report on the co-offender).
Rule 11 makes a minor drafting amendment that is consequential on the amendments made to the principal rules in relation to extended supervision order appeals.
Rule 12 amends rule 27 (timing of submissions on merits in oral appeals) of the principal rules in 2 respects. First, it replaces the time specified in rule 27(3) and (4) within which, respectively, the appellant and the respondent must provide written submissions to the Court. Under the amendment, the appellant must now provide his or her written submissions no less than 15 working days before the hearing date, instead of 14 days before that date. The respondent, on the other hand, must now provide his or her submissions no less than 10 working days before the hearing date, instead of 7 days before that date. Secondly, rule 12 inserts new provisions into rule 27 of the principal rules dealing with the timing of submissions from a victim who wishes to make written submissions to the Court on an extended supervision order appeal or who wishes to appear and make oral submissions at the hearing of that appeal.
Rule 13 amends rule 29 (period allowed for making written submissions on merits in appeals on papers) of the principal rules in several respects. The principal amendments require the Registrar to—
•appoint a period within which the appellant and, in the case of an extended supervision order appeal, the victim may make written submissions to the Court; and
•send to the respondent all submissions received by the Court from the appellant and, if applicable, from the victim within the appointed period.
Rule 13 also makes a consequential amendment to rule 29 of the principal rules by omitting a provision that is no longer needed because of the addition of a general power to extend or shorten appointed times under new rule 45A.
Rule 14 amends rule 34(3) (notification of decisions) of the principal rules. Under the amendment, an application for review of a decision of the Court in cases where a party has the right to have that decision reviewed must now be filed within 5 working days after receipt of notification, instead of 7 days after that receipt.
Rule 15 inserts new rule 36A into the principal rules. New rule 36A imposes certain duties on the chief executive to notify victims about extended supervision order appeals. New rule 36A is consistent with the duty of the chief executive under section 107H(4) of the Parole Act 2002 to notify every victim of the offender concerned when any hearing of an appeal against an extended supervision order is to be held.
Rule 16 inserts new rules 45A and 45B into the principal rules. New rule 45A allows the Court to extend or shorten the time appointed by the principal rules, or fixed by an order, for doing any act or taking any proceeding or any step in a proceeding on any terms that the Court thinks just. This power, which replaces the provision in rule 4(3) of the principal rules concerning the extension or shortening of appointed periods, is expressed in the same terms as a corresponding power in respect of civil proceedings that is conferred on the Court by the Court of Appeal (Civil) Rules 2005. New rule 45B allows the Court or, in certain cases, the Registrar to correct any clerical mistakes or any errors arising from an accidental slip or omission in any judgment or order or the reasons for any judgment or order. This power is also expressed in the same terms as a corresponding power in respect of civil proceedings that is conferred on the Court by the Court of Appeal (Civil) Rules 2005.
Rule 17 inserts a new form 8 into the principal rules. New form 8 relates to the notice of appeal by an offender in respect of an extended supervision order.