Court of Appeal (Criminal) Amendment Rules 2008

2008/73

Crest

Court of Appeal (Criminal) Amendment Rules 2008

Anand Satyanand, Governor-General

At Wellington this 17th day of March 2008.

Present:
The Right Hon Helen Clark presiding in Council

Pursuant to section 51C of the Judicature Act 1908, section 409 of the Crimes Act 1961, and section 73 of the Bail Act 2000, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council and, as far as the rules regulate the practice and procedure of the Court of Appeal in the exercise of jurisdiction conferred by the Judicature Act 1908 and the Crimes Act 1961, with the concurrence of the Right Honourable the Chief Justice and at least 2 of the other members of the Rules Committee (of whom at least 1 was a Judge of the High Court), makes the following rules.

Rules

1 Title
  • These rules are the Court of Appeal (Criminal) Amendment Rules 2008.

2 Commencement
  • These rules come into force on 17 April 2008.

3 Principal rules amended
4 Interpretation
  • Rule 3(1) is amended by revoking the definition of prosecutor appeal and substituting the following definition:

    prosecutor appeal means an appeal by a prosecutor, whether made under Part 13 of the Act or any other Act (except the Parole Act 2002).

5 New rule 5A inserted
  • The following rule is inserted after rule 5:

    5A Submissions
    • Any submissions filed under these rules must—

      • (a) be in type of not less than 12 point size; and

      • (b) be on A4 paper; and

      • (c) use 1.5 line spacing; and

      • (d) not exceed any page limit specified in these rules or by a Judge.

6 New heading and rules 5B to 5I inserted
  • The following heading and rules are inserted above the heading above rule 6:

    Applications for leave to appeal

    5B Forms of application for leave to appeal
    • (1) An application for leave to appeal (other than by a prosecutor) under Part 13 of the Act must be made by notice of application for leave to appeal in form 1.

      (2) An application for special leave to appeal (other than by a prosecutor) under section 144(3) of the Summary Proceedings Act 1957 must be made by notice of application for special leave to appeal in form 1A.

      (3) An application by a prosecutor for leave to appeal (other than an application for special leave to appeal under section 144(3) of the Summary Proceedings Act 1957) must be made by notice of application for leave to appeal in form 1B.

      (4) An application by a prosecutor for special leave to appeal under section 144(3) of the Summary Proceedings Act 1957 must be made by notice of application for special leave to appeal in form 1C.

    5C Reply memorandum
    • (1) An intended respondent (the respondent) who is served with a notice of application for leave to appeal must, within 5 working days of service of that notice, file and serve on the applicant a reply memorandum.

      (2) The respondent's reply memorandum must state—

      • (a) whether the respondent consents to or opposes the application and why; and

      • (b) by reference to the specific questions and answers in the application, which answers the respondent does not accept and why; and

      • (c) whether, if the respondent opposes the application, the respondent considers the application should be heard separately from, or simultaneously with, the proposed appeal and the reasons for that view.

    5D Case management of application for leave to appeal
    • (1) As soon as the reply memorandum is filed or the time for filing the reply memorandum has passed, the Registrar must refer the application for leave to appeal to a Judge for case management.

      (2) The Judge may determine—

      • (a) that leave to appeal be determined by the Court separately from the proposed appeal; or

      • (b) that leave to appeal be determined by the Court simultaneously with the appeal.

      (3) The Judge need not give reasons for the determination under subclause (2).

      (4) If rules 21 to 25 apply to the proposed appeal, the Judge may, when making a determination under subclause (2) or following that determination, make the initial decision on the mode of hearing in terms of rule 23(1).

    5E No need for notice of appeal if appeal to be heard
    • (1) This rule applies where—

      • (a) following a determination under rule 5D(2)(a), the Court gives leave to appeal; or

      • (b) a Judge determines, under rule 5D(2)(b), that leave to appeal be determined by the Court simultaneously with the appeal.

      (2) The applicant need not file a notice of appeal.

      (3) If the appeal is to be an oral appeal, the Registrar must allocate a fixture for it in accordance with rule 26 and the appeal proceeds in accordance with the provisions relating to oral appeals.

      (4) If the appeal is to be an appeal on the papers, the appeal proceeds in accordance with the provisions relating to appeals on the papers.

    5F Procedure where leave to appeal is to be heard on papers, separately from proposed appeal
    • (1) This rule applies where an application for leave to appeal is to be heard on the papers and separately from the proposed appeal.

      (2) The provisions of these rules relating to appeals and applications that are heard on the papers apply with any necessary modifications.

      (3) If the Court decides to give leave to appeal, the Court or a Judge must, when leave is given or subsequently, decide whether the appeal is to be heard as an oral appeal or as an appeal on the papers.

    5G Procedure where leave to appeal is to be heard orally, separately from proposed appeal
    • (1) This rule applies where an application for leave to appeal is to be heard orally and separately from the proposed appeal.

      (2) The provisions of these rules relating to appeals and applications to be heard orally apply with any necessary modifications.

      (3) Despite rule 27, each party's written submissions must not exceed 5 pages, unless a Judge permits longer submissions.

      (4) Despite rule 27, the applicant must provide his or her written submissions to the Court and to the respondent no less than 10 working days before the hearing date.

      (5) Despite rule 27, the respondent must provide his or her written submissions to the Court and to the applicant no less than 5 working days before the hearing date.

      (6) Oral submissions made at the hearing of an application for leave to appeal may not exceed—

      • (a) 15 minutes, in the case of the applicant's opening submission:

      • (b) 15 minutes, in the case of the respondent's submission:

      • (c) 5 minutes, in the case of the applicant's submission in reply.

      (7) Subclause (6) is subject to any contrary direction given in a particular case by a Judge.

    5H Submissions where leave to appeal is determined simultaneously with appeal
    • When an application for leave to appeal is to be determined by the Court simultaneously with the appeal, the parties must, in their written submissions on the merits of the appeal, also address the question whether leave to appeal should be granted.

    5I Reasons for decision to grant or refuse leave
    • (1) If the Court decides to grant leave to appeal, it need not give its reasons for the decision.

      (2) If the Court decides to refuse to give leave to appeal, it must state its reasons for refusing to give leave to appeal, but those reasons may be stated briefly and in general terms.

7 Form of notice of appeal and notice of application for leave
  • (1) The heading to rule 6 is amended by omitting and notice of application for leave to appeal.

    (2) Rule 6(1) is revoked.

    (3) Rule 6(2) is amended by omitting or notice of application for leave to appeal (as the case requires).

    (4) Rule 6(6) is revoked.

8 Other applications
  • Rule 7 is amended by omitting 6 and substituting 5.

9 Rule 9 revoked
10 Complaint against trial counsel
11 Fresh evidence
12 New rule 12BA inserted
  • The following rule is inserted after rule 12B:

    12BA Deponent may be required to give evidence orally
    • (1) This rule applies if, in an appeal based on a ground described in rule 12A or 12B, an affidavit is filed on behalf of a party (party A) and served on the other party (party B).

      (2) If party B requires the deponent who has sworn the affidavit to give his or her evidence orally, party B must, within 15 working days of service of the affidavit, file and serve on party A a notice (an oral evidence notice) stating that requirement.

      (3) If party B consents to the deponent giving his or her evidence in chief by the affidavit but requires the deponent to be cross-examined, party B must, within 15 working days of service of the affidavit, file and serve on party A a notice (a cross-examination notice) stating that requirement.

      (4) If party A is served with an oral evidence notice or a cross-examination notice, party A must—

      • (a) immediately advise the deponent that he or she is required to give his or her evidence orally or be available for cross-examination (as the case may be); and

      • (b) advise the deponent of the hearing date of the appeal as soon as it is known; and

      • (c) ensure that the deponent is present at the hearing.

      (5) If party B does not serve an oral evidence notice with respect to the affidavit, party A may assume that party B consents to the deponent giving his or her evidence by the affidavit.

13 Documents required for other appeals
  • Rule 14 is amended by omitting 1, 2, 4, 5, 6, or 8 and substituting 1 to 1C, 2, 4, 5, or 8.

14 Submissions on mode of hearing
  • Rule 22 is amended by omitting required by rule 6.

15 Power to extend or shorten time appointed by rules or fixed by order
  • (1) Rule 45A is amended by revoking subclause (1) and substituting the following subclause:

    • (1) The Court or a Judge may extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding on any terms that the Court or the Judge thinks just.

    (2) Rule 45A(2) is amended by inserting or a Judge after The Court.

    (3) Rule 45A(2)(a) is amended by inserting or Judge's after the Court's.

16 Amendments to Schedule
  • (1) The Schedule is amended by revoking forms 1 and 2 and substituting the forms 1 to 2 set out in the Schedule of these rules.

    (2) The Schedule is amended by revoking form 6.

17 Transitional provision
  • The principal rules, as in force immediately before the commencement of these rules, continue to apply to every application for leave to appeal made before that commencement as if these rules (other than this rule) had not been made.


Schedule
New forms substituted

r 16(1)

Form 1
Notice of application for leave to appeal

r 5B(1)

Part 13, Crimes Act 1961

In the Court of Appeal of New Zealand

CA

R v

To the Registrar of the Court of Appeal

I, [full name], the person named in the proceeding described above, give you notice that I apply for the leave of the Court of Appeal to appeal to that Court against [give particulars of the decision against which you wish to appeal, including the date on which and the place at which it was made] on the grounds set out below, and I give answers as follows to the following questions:

1(a)Is any lawyer now acting for you?
 (b)If so, give his or her name and address and fax number:
 (c)Have you applied, or do you intend to apply, to the Legal Services Agency for a grant of legal aid?
2If you are currently in a penal institution, which one?
3If you do not currently have a lawyer, what is your current postal address and fax number (if any)?
4(a)If you are in custody and are granted an oral hearing, do you wish to apply for leave to be present?
 (b)If so, what are your reasons for seeking leave to be present? [If you wish to have bail, you must apply separately in writing setting out the reasons and grounds for your application.]
5You have 10 days from the date of the decision against which you wish to appeal in which to file your application. The Court may extend this time. If your application is out of time, what are your reasons for saying that the Court should nevertheless extend the time and consider your application?
6(a)If leave to appeal is granted, what would the grounds of your appeal be?
 (b)On what statutory provisions or cases would you rely?
7Why should the Court give you leave to appeal?
8(a)If your proposed appeal relates to the admissibility of evidence proposed to be called at the trial, outline (on a separate sheet, if necessary) the disputed evidence in question and its relevance to the trial.
 (b)If your proposed appeal challenges the exercise of a judicial discretion, explain (on a separate sheet, if necessary) why the challenge meets the criteria for reversing the exercise of a discretion.
 (c)If your proposed appeal challenges a factual finding in the decision against which you wish to appeal, outline (on a separate sheet if necessary) the evidence on which you rely for your challenge.
9When is the trial likely to be?
10Attach the decision against which you wish to appeal (if available).
11Include in this application anything that is relevant to the decision about whether your appeal should be considered at an oral hearing or be dealt with on the papers, such as—
 (a)whether you have been assisted by counsel in preparing your application for leave:
 (b)(if relevant) whether you have 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 your application:
 (e)whether any evidence should be called:
 (f)any relevant cultural or personal factors.

Dated this [date] day of [month] [year].

Signature of applicant:

Form 1A
Notice of application for special leave to appeal (summary proceedings appeal)

r 5B(2)

Section 144(3), Summary Proceedings Act 1957

Name of applicant:

Determination of the High Court against which you are appealing:

[Describe the determination.]

Date of determination of the High Court:

Date of refusal of the High Court to grant leave to appeal:

Questions proposed for Court of Appeal:

[Set out the questions you wish the Court of Appeal to determine.]

To the Registrar of the Court of Appeal

I, the above named applicant, give you notice that I apply for special leave to appeal to the Court of Appeal against the determination of the High Court described above on the grounds set out below, and I give answers as follows to the following questions:

1(a)Is any lawyer now acting for you?
 (b)If so, give his or her name and address and fax number:
 (c)Have you applied, or do you intend to apply, to the Legal Services Agency for a grant of legal aid?
2If you are currently in a penal institution, which one?
3If you do not currently have a lawyer, what is your current postal address and fax number (if any)?
4(a)If you are in custody and are granted an oral hearing, do you wish to apply for leave to be present?
 (b)If so, what are your reasons for seeking leave to be present? [If you wish to have bail, you must apply separately in writing setting out the reasons and grounds for your application.]
5You have 21 days from the date of the refusal of the High Court to grant leave to appeal in which to file your application. The Court of Appeal may extend this time. If your application is out of time, what are your reasons for saying that the Court should nevertheless extend the time and consider your application?
6The Court of Appeal may grant special leave if, in the opinion of that Court, the question or questions of law involved in the appeal are ones that, by reason of their general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision. What are your grounds for seeking special leave?
7What should the answer to the question or questions of law be? [In addition, briefly set out the grounds for that answer or those answers.]
8What else do you wish the Court of Appeal to do in addition to answering the question or questions of law?

Dated this [date] day of [month] [year].

Signature of applicant:

Form 1B
Notice of application for leave to appeal by Solicitor-General/prosecutor

r 5B(3)

In the Court of Appeal of New Zealand

CA

R (or Police or prosecutor)

Applicant

v

[Name and full address]

Respondent

Take notice that under [identify section and Act] I, the Solicitor-General/prosecutor, apply for leave (or special leave) to appeal against [identify decision or ruling to be appealed] on the grounds set out below, and I give answers as follows to the following questions:

1(a)If leave to appeal is granted, what would the grounds of your appeal be?
 (b)On what statutory provisions or cases would you rely?
2Why should the Court give you leave to appeal?
3(a)If your proposed appeal relates to the admissibility of evidence proposed to be called at the trial, outline (on a separate sheet, if necessary) the disputed evidence in question and its relevance to the trial.
 (b)If your proposed appeal challenges the exercise of a judicial discretion, explain (on a separate sheet if necessary) why the challenge meets the criteria for reversing the exercise of a discretion.
 (c)If your proposed appeal challenges a factual finding in the decision against which you wish to appeal, outline (on a separate sheet if necessary) the evidence on which you rely for your challenge.
4When is the trial likely to be?
5Attach the decision against which you wish to appeal (if available).
6If this application is out of time, what are your reasons for saying that the Court should nevertheless extend the time and consider your application?

Dated this [date] day of [month] [year].

Solicitor-General/prosecutor

The address for service is [insert address].

Form 1C
Notice of application for special leave to appeal by a prosecutor

r 5B(4)

Section 144(3), Summary Proceedings Act 1957

Name of applicant:

Name and full address of respondent:

Determination of the High Court against which you are appealing:

[Describe the determination.]

Date of determination of the High Court:

Date of refusal of the High Court to grant leave to appeal:

Questions proposed for Court of Appeal:

[Set out the questions you wish the Court of Appeal to determine.]

To the Registrar of the Court of Appeal

I, the above-named applicant, give you notice that I apply for special leave to appeal to the Court of Appeal against the determination of the High Court described above on the grounds set out below, and I give answers as follows to the following questions:

  • 1 You have 21 days from the date of the refusal of the High Court to grant leave to appeal in which to file your application. The Court of Appeal may extend this time. If your application is out of time, what are your reasons for saying that the Court should nevertheless extend the time and consider your application?

  • 2 The Court of Appeal may grant special leave if, in the opinion of that Court, the question or questions of law involved in the appeal are ones that, by reason of their general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision. What are your grounds for seeking special leave?

  • 3 What should the answer to the question or questions of law be? [In addition, briefly set out the grounds for that answer or those answers.]

  • 4 What else do you wish the Court of Appeal to do in addition to answering the question or questions of law?

Dated this [date] day of [month] [year].

Solicitor-General/prosecutor

The address for service is [insert address].

Form 2
Appeal by Solicitor-General/prosecutor

r 6(2)

In the Court of Appeal of New Zealand

CA

R (or Police or prosecutor)

Appellant

v

[Name and full address]

Respondent

Take notice that under [identify section and Act] the Solicitor-General/prosecutor appeals against [identify decision or ruling to be appealed].

Upon the grounds that [identify grounds of appeal].

[If the appeal is out of time, state that here and give the reasons for saying that the Court should extend the time and consider the appeal.]

Dated this [date] day of [month] [year].

Solicitor-General/prosecutor

The address for service is [insert address].

Diane Morcom,
Clerk of the Executive Council.

Explanatory note

This note is not part of the rules, but is intended to indicate their general effect.

These rules, which come into force on 17 April 2008, amend the Court of Appeal (Criminal) Rules 2001. The amendments—

  • prescribe matters of form required for written submissions to the Court of Appeal:

  • prescribe separate procedures for applications for leave to appeal and new forms for that purpose:

  • provide that a party to an appeal who is served with an affidavit may require the deponent of the affidavit to give his or her evidence orally by filing a notice to that effect. In the absence of such a notice, the party on whose behalf the affidavit has been filed may assume that the other party consents to the evidence being given in affidavit form:

  • authorise a Judge, acting alone, to extend or shorten time limits.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 20 March 2008.

These rules are administered by the Ministry of Justice.