At about the time the decision is taken about the mode of hearing (oral or on the papers) the registrar prepares the case on appeal and sends it to counsel. It is the responsibility of counsel to ensure that all relevant material is either in the case on appeal or otherwise made available to the court. As soon as the case on appeal has been sent out counsel must advise the registrar what other documents from the file will need to be before the court.

3. Written submissions for hearing on the papers

Where the appeal is to be heard on the papers, any written submissions, including submissions in reply, are to be supplied to the court and served on the other party within the relevant period specified by the registrar which, unless otherwise advised, is 28 days for the appellant’s and respondent’s principal submissions and 14 days for the appellant’s submissions in reply. Where the Crown is the respondent it is allowed only 14 days to make its written submissions. The parties must file four copies for court use and sufficient additional copies so that the registrar can provide one copy for each other party. The time periods begin running on the date on which the party concerned receives the relevant notice as to mode of hearing or submissions. If sent by mail or fax, the notice or submissions are treated as having been received three days after being sent to the party’s last known postal or fax address.

Comment: See r29 Court of Appeal (Criminal) Rules 2001. The decision on mode of hearing (oral or on the papers) is made by a single judge under s392A of the Crimes Act 1961 once any legal aid decision has been made by the Legal Services Agency and the preliminary case on appeal has been prepared and distributed. It is made on the basis of any material received by the court to that time including the preliminary case on appeal. It is therefore very important that, where an oral hearing is sought, the question relating to that issue in the notice of appeal or application for leave to appeal is fully addressed or that written submissions on this issue are made immediately following the lodging of the appeal or leave application. However, a decision to hear the matter on the papers is always subject to re-consideration under s392A(4) in the light of submissions received under r29 after they have been considered by the three judges of the court to whom the hearing has been allocated (who do not include the judge who made the original mode of hearing decision).

After a decision has been made on whether the case will be heard by the permanent court (and how many judges will sit) or the Criminal Appeal Division, the registrar allocates a fixture and advises counsel of the length of time set aside for the hearing. Upon receipt of this advice counsel must notify the registrar if their estimate of the time needed to hear the appeal differs significantly from the registrar’s assessment.

Comment: Counsel should, prior to accepting a fixture, advise the court if in counsel’s view the appeal should be heard by a court of five judges. This is appropriate where the appeal raises issues of importance, including any legal, social and general economic consideration; if there are conflicting decisions of lower courts; or if the court is to be asked to depart from its own earlier decision.

Appellant’s counsel is to provide full written submissions in every appeal in respect of which there is to be an oral hearing. They must be supplied to the court and to Crown counsel no less than fourteen (14) days before the hearing date.

The written submissions of the Crown (or respondent) are to be supplied to the court and to appellant’s counsel no less than seven (7) days before the hearing date.

Where the appeal is to be heard by three judges, four copies must be filed for court use; six copies are to be provided where the appeal is to be heard by five judges. In each case sufficient additional copies are to be filed to enable the registrar to provide one copy for each other party.

Comment: See r27 of the Court of Appeal (Criminal) Rules 2001. The court will insist that the time limits are strictly observed and that submissions are concise, tightly focused and properly cross-referenced to the case on appeal and the authorities to which the court is referred. They should avoid lengthy quotations from authorities but, rather, should seek to identify the principle and passage relied upon.

Bundles of authorities and legislation relied upon must be supplied by the appellant and the Crown to the court at the same time as their submissions. The same number of copies is required as for submissions (see notes 3 and 5 above). A bundle should contain only cases to which counsel intends to refer the court and to rely on for more than a general principle. The bundle of authorities must contain as its first page a list of the authorities, including their citations.

Comment: See r20 Court of Appeal (Criminal) Rules 2001. It is unnecessary and undesirable to include cases and legislation which are mentioned only incidentally in written submissions and to which the court is unlikely to be asked to refer. Nor should there be included cases mentioned in submissions only to support well recognised propositions of law.

Care should be taken to ensure that words are not lost off the top, bottom, or sides of pages in the copying process (especially page numbers). Cases copied across two pages should be arranged facing out from the spine of the bundle.

Leave is required before any further evidence is received, except for relevant updating material on matters arising since the appealed decision. Cross-examination is by leave only. Any application(s) and affidavit(s) on behalf of the appellant must be filed and served 21 days before the oral hearing.

8. Trial complaints and fresh evidence applications

Where an appellant intends to support the appeal

(a) by reference to complaints against defence counsel at the trial, the police (in relation to their investigation and prosecution of the charge), the Crown (in relation to the conduct of the prosecution at the trial), or the trial judge, or

2. by reference to fresh evidence to be introduced on appeal,

those matters must be disclosed to the Crown in a detailed way no less than 21 days before the date set for the oral hearing.

Comment: Grounds resting upon complaints about the conduct or competency of defence counsel at the trial cannot realistically be advanced unless the appellant provides to the Crown no less than 21 days before the date set for the oral hearing full details of the complaint in affidavit form (where that is appropriate) and a waiver of privilege addressed to the practitioner concerned. This will enable the Crown to approach the practitioner and secure any response seen as appropriate for the purpose of assisting the court.

9. Complaints as to conduct of trial

Where any issue arises involving the conduct of the trial and where counsel for the appellant and for the Crown are unable to agree upon a written account of any incident to be referred to in the course of the appeal, so that it may be necessary for a report to be called for from the trial judge, advice (with the necessary details) must be given to the registrar no later than 21 days before the date set for the oral hearing of the appeal. Where a hearing on the papers has been indicated, this advice must be given with the appellant’s written submissions or in advance of those submissions.

10. Disparity in sentences

If in the course of the appeal it is to be submitted that the sentence imposed is not appropriate because of disparity with sentences imposed upon another person involved in the same offending, it is the responsibility of counsel raising that disparity to ensure that all necessary materials are brought before the court. The registrar should be asked to have available the other sentencing file(s) (which of course may need to be obtained from a court registry elsewhere). At a minimum the court will need at the hearing the statement of facts or other evidence upon which the other sentence was based, the victim impact report, the pre-sentence report, including the offender’s previous record, and the Judge’s sentencing remarks.

11. Service on Crown

Service on the Crown of all documents is to be by delivery to the Crown Law Office, 12^th Floor, St Pauls Square, 55 Pipitea Street, Wellington, DX SP20208, PO Box 5012, Wellington.

At an oral hearing, counsel will be expected to speak to their written submissions, not simply to read through them, and to respond to questions from the bench. Where appropriate, time limits will be indicated in advance of the hearing and will be strictly adhered to unless some new matter emerges during oral argument.

Comment: Counsel should proceed on the assumption that members of the court will have considered the written submissions in advance of the hearing. Precious time should not be wasted during argument on points which counsel believes to be unlikely to influence the court.

After the time allowed for written submissions has expired, or submissions have earlier been received, three judges will consider the written materials before the court and determine the appeal. A written judgment will be delivered in the manner referred to below.

Subject to any orders for suppression, the submissions, being presentation of argument to the court, may be available to the media when presented.

Comment: It is the responsibility of counsel to draw to the attention of the presiding judge any existing such order or to apply for one, where that is appropriate.

Counsel for the appellant must immediately advise the registrar if an appeal is to be abandoned in whole or in part. This rule applies whether the appeal is to be heard orally or on the papers. Notice of abandonment should forthwith be given in Form 7 or to the like effect.

Comment: See r35 of Court of Appeal (Criminal) Rules 2001.

Applications for adjournments will only be granted in exceptional circumstances.

The above requirements will be subject to necessary modification where an appeal is to be heard on an urgent basis. Counsel must in such circumstances consult with the registrar.

Comment: The court schedule will, where possible, contain provision for the hearing of urgent matters; for example, appeals under s379A of the Crimes Act and appeals where a short sentence is being served.

Although all judgments of the court are required to be delivered in open court, other than in cases of particular public interest the court merely announces the result of the appeal where judgment has been reserved or there has been a hearing on the papers. Counsel are not required to be present. Copies of the written judgment(s) are made available by the registrar immediately afterwards.

Comment: See r33 of the Criminal Appeal Rules 2001.

19. Unrepresented appellants

Where an appellant is not represented by counsel, all references to counsel should be read as referring to the appellant in person.

20. The act and the rules

Appellants and their advisers should make themselves familiar with Part XIII of the Crimes Act 1961 and the Court of Appeal (Criminal) Rules 2001.