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Prosecution Guidelines

Chapter 10. DPP appeals

This Chapter sets out guidelines on DPP appeals, retrials and investigations after acquittal.

Published 29 March 2021

10.1 Introduction

This Chapter sets out guidelines on:

  • DPP appeals
  • retrials and investigations after acquittal.

10.2 When will the DPP lodge an appeal?

The DPP will only lodge an  appeal if satisfied that:

  1. all applicable statutory criteria are established
  2. there is a reasonable prospect that the appeal will succeed
  3. it is in the public interest.

10.3 Interlocutory appeals and appeals against the exclusion of evidence in a trial

The DPP has a right of appeal to the Court of Criminal Appeal (CCA) against an  interlocutory judgment or order made by a  judge in the District Court or Supreme Court.

The DPP also has a right of appeal against any decision or ruling on the admissibility of evidence, provided the decision or ruling eliminates or substantially weakens the prosecution’s case.

The prosecutor should consider whether an unfavourable decision may be amenable to appeal. Where an appeal is anticipated, the judge should be alerted to the possibility that the CCA may deal with the matter expeditiously, so as to enable the proceedings to continue with minimal disruption, rather than vacating the trial date.

In determining whether to appeal, the DPP will consider whether the judge made an error in reaching the decision.

10.4 Appeals against sentence

Sentence appeals to the Court of Criminal Appeal

The DPP has a right of appeal to the CCA against a sentence imposed in the Supreme Court, the District Court and the Drug Court.

Only the Director or a  Deputy Director can determine whether or not to appeal against a sentence.

Prosecutors should promptly assess all sentences imposed to determine whether they may be the subject of an appeal. There is no statutory time limit, but delay in lodging an appeal may impact on the appeal court’s decision.  Matters where the offender has been sentenced to a penalty other than full-time detention should be expedited. 

A request for a review of the sentence may be made by a person with a legitimate interest in the matter, such as the victim or police officer-in-charge. A prosecutor should refer such a matter to the Director even if they do not agree that an appeal is appropriate.

The primary purpose of DPP sentence appeals is to allow the CCA to provide governance and guidance to sentencing courts. In determining whether or not to appeal against a sentence, the DPP will first consider whether the sentencing judge made an error. Even if there is error, the prosecution must still establish that  the sentence is  manifestly inadequate. If there is no identifiable error, an appeal may nevertheless succeed where the sentence is so manifestly inadequate that it is likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders.

DPP appeals against sentence are, and ought to be, rare. They should be brought in appropriate cases:

  1. to enable the courts to establish and maintain adequate standards of punishment for crime
  2. to enable idiosyncratic approaches to be corrected
  3. to correct sentences that are so disproportionate to the seriousness of the crime as to lead to a loss of confidence in the administration of criminal justice.

For any offence there is a range of legitimate sentencing options, determined by the nature and seriousness of the offence and the offender’s personal circumstances. The CCA must be satisfied that the sentence falls outside that range to such an extent as to be manifestly inadequate. Mere dissatisfaction by the prosecution with the sentence passed is not enough to warrant an appeal.

If the CCA finds that the sentence is manifestly inadequate, the prosecution must persuade the CCA to exercise its residual discretion to re-sentence the offender. Factors that may militate against the CCA’s exercise of the discretion to intervene include:

  1. any delay in lodging the appeal
  2. the likely custodial status of the offender by the time an appeal would be heard
  3. the subjective characteristics of the offender, including mental and physical health and any steps taken towards rehabilitation since the date of sentence
  4. the position taken by the prosecution before the sentencing judge.

Sentence appeals to the District Court

The DPP has a right of appeal to the District Court against sentences imposed in the Local Court. There is a time limit of 28 days for lodging an appeal against a sentence imposed in the Local Court. While it is not essential to establish error by the magistrate or manifest inadequacy, an appeal against sentence to the District Court will only be instituted where there is a reasonable prospect that the appeal would succeed.

10.5 Appeal against acquittal on a question of law alone

The DPP may appeal to the CCA against a directed acquittal or an acquittal in a judge alone trial. The Director will only lodge such an appeal if satisfied that:

  1. the acquittal arose from an error involving a question of law alone
  2. the Court would exercise its discretion in favour of ordering a retrial. 

10.6 Referral on a question of law

If a person is acquitted of any charges, the DPP may refer a point of law that arose at or in connection with the hearing to the CCA for an opinion. The DPP will only refer a point of law to the CCA if satisfied that:

  1. the point clearly arose in the proceeding
  2. the point is contentious and requires authoritative resolution
  3. the CCA’s opinion will be of practical benefit in future cases.

10.7 Retrials after acquittal

The DPP may apply to the CCA for a retrial after an acquittal where:

  1. there is fresh and compelling evidence, in the case of an offence with a maximum penalty of life imprisonment
  2. the acquittal is tainted, in the case of an offence with a maximum penalty of 15 years or more. The DPP will only make an application if a retrial would be in the interests of justice.

10.8 Investigation after acquittal

Police officers do not investigate an offence of which a person has been acquitted unless the DPP has given written authorisation. Such investigations are rare. The DPP will only give written authorisation if satisfied that:

  1. there is, or as a result of the investigation there is likely to be, sufficient new evidence of the commission of the offence by a person to warrant the investigation
  2. it is in the public interest for the investigation to proceed
  3. the previous acquittal would not be a bar to the trial of the person for an offence that may be charged as a result of the investigation.