Criminal Procedure - Chapter 20
Difference between appeal and review
Automatic review - S302
Review
Categories of review procedures
When will review be more appropriate than appeal?
The right to review and review in general - S35(3) of the Constitution - the right to a fair procedure, and this includes review
The judge must ensure that justice is done. It is equally important that they should also ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy. They should therefore so conduct the trial that their open-mindedness, their impartiality and his fairness are manifest to all those who are concerned with the trial and its outcome, especially the accused
High court - common law inherent jurisdiction to review - S173 of Constitution
Constitutional review
Ordinary reviews: statutory origin
CPA
Confirmation of inherent common law review powers of the High Court
S22: Superior Courts Act
Improper interest, bias, malice or corruption judicial officer
Gross irregularity: proceedings
No jurisdiction
Admission of inadmissible or incompetence evidence or rejection of admissible / competent evidence
Automatic - S302
Extraordinary - S304(4)
Before sentencing - S304A
Case set down for argument - S306
Facts
Time
Record
Inherent v statutory jurisdiction
Merits v procedure
Notice of appeal v notice of motion
No legal representation at trial
District courts
Length of sentence / amount of fine
Length of service - less than seven years of experience as a presiding officer in criminal matters
Extraordinary review - S304(4)
Courts of review don't have general power to increase a sentence on review
Exceptions
Magistrates' court imposed an unlawful sentence
Review court alters the conviction to a more serious crime
S174 of the CPA - discharge at the end of the state's case
Review before sentencing - S304A
Review after conviction but before sentencing
This is where, for cases decided in the lower courts by a less experienced presiding officer, the cases are automatically reviewed by the High Court
Where in any case at lower court level, during any part of the process, if there are concerns (such as the magistrate incorrectly applying the law) then the matter can be taken on review
This is where a case is taken on review after conviction, but before sentencing
Types of review
S304(4) - extraordinary review
S304A Review before sentencing
S302 - Automatic review
S306 - review through a case set down for argument
Review through a case set down for argument - S306
Normally review occurs through affidavit, but here, if the matter is contentious and complex enough, then it can be set down for review by oral argument
Review for procedure - procedures are the rules that assists in conducting the matter
Appeal for both
Appeal for merits - merits is where the principles of the law are applied to the facts
Appeal is restricted to the record
Review moves beyond the record as it deals with procedural issues, such as where something is not admitted to the record
The record is any notes taken by the presiding officer, while any testimony and evidence is on the record and anything said in court is also part of the record
Appeal is restricted to needing to be lodged within 14 days of the judgement (it is good practice immediately, if one has a concern, lodge an appeal, even if this is done orally in court)
For review there is no time limitation in principle, but practically a longer time leads to a weakening of the argument
Appeal is essentially a retrial on the basis of the record only
Review proceedings can include the introduction of facts in order to prove irregularities
For appeal there is only statutory jurisdiction
For review, the superior courts have inherent jurisdiction, this also being overriding if necessary
Appeal is lodged by way of application for appeal
Review is sought by way of notice of a motion whereby the respondents are requested to show why the decision or proceedings should not be reviewed and set aside