The duty solicitor may encounter an unrepresented defendant who has been convicted, imprisoned and who needs assistance to appeal the sentence. This topic is covered in detail in the Bail chapter. Whilst it is unlikely a duty solicitor will become involved in an appeal process beyond assisting an unrepresented defendant, the following information has been included for completeness.
Appeals from the Criminal Division of the Magistrates Court lie:
The South Australian Police, whether as appellant or respondent, is to be referred to as “Commissioner of Police”.
Appeals to the General Division of the Supreme Court
A Notice of Appeal must be filed within 21 days of the date of the conviction and/or sentence [Joint Criminal Rules 2022 (SA) r 185.1]. The Notice of Appeal must be in the prescribed form, identify the judgment against which the appeal is made and set out the grounds of the appeal, among other things [r 185.3].
For a single Judge (General Division) appellate proceeding, the appellant must join as a respondent in the appeal any other party to the first instance proceeding unless that party has no interest in the appeal [r 185.3(2)]. The appellant must serve the notice of appeal on the other parties to the appeal as soon as practicable [r 185.4(1)]. The appellant must further serve a copy of the notice of appeal on the Registrar or other proper officer of the court of first instance as soon as practicable [r 185.4(2)].
These appeals will be listed for hearing before a Judge on a fixed date and the Court will notify the parties of the listing date [r 189.1].
Appeals to the Court of Appeal
A Notice of Appeal must be filed within 21 days of the date of sentence [r 193.1(1)]. The Notice of Appeal must be in the prescribed form, identify the judgment against which the appeal is made and set out the grounds of the appeal, among other things [r 193.2]. For an appeal to the Court of Appeal, the appellant must join as a respondent in the appeal any other party to the proceedings appealed from, unless that party has no interest in the appeal [r 193.2(2)]. The appellant must serve the notice of appeal on the other parties to the appeal as soon as practicable [r 193.3(1)]. The appellant must further serve a copy of the notice of appeal on the Registrar or other proper officer of the court appealed from as soon as practicable [r 193.3(2)].
On hearing an appeal from the Magistrates Court, the appellate court may:
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| The duty solicitor must brief an experienced practitioner should they become aware of a matter that may require an appeal. It is important for the duty solicitor to remember that the Notice of Appeal must be filed within 21 days. However, leave to appeal out of time may be considered. Before an appeal is commenced for a client with legal aid, the sentencing remarks are usually reviewed by a senior legal practitioner who will advise on the merits and grounds of appeal. The sentencing remarks are available on the Courts Administration Authority website for 4 weeks following sentencing. They are then put on the offender's court file and can be requested from the Magistrates Court Registry or through the CourtSA portal along with a fee remission certificate [Joint Criminal Rules 2022 (SA) rr 18.1 and 19.1] **They may also be available from the Commission's Library, so duty solicitors should check there first.
Where the duty solicitor was involved in making the sentencing submissions, they will be required to draft an affidavit as to the submissions they made to the Court. It is important that the duty solicitor write comprehensive notes as soon as possible while submissions remain fresh in their mind. |
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