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Notes

1. oviso 


Fundamental error:

Wilde (1988) 164 CLR 365

* ....the proviso has no application where there has been such a departure from the essential requirements of the law that the irregularity goes to the root of the proceedings. If that has occurred, it can be said that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.

* Errors of this kind may be so fundamental that by their very nature they exclude the application of the proviso... [56]

* BUT ... there is no rigid formula for determining fundamental error...[57]

If appeal allowed?

* s 668E (2) - Quash the conviction/ acquit

* s 668E (3) - Quash the sentence and pass another sentence (either more or less severe)

* s 668F - Some convictions correct not others, (substitute sentences)

* s 669 - Grant a new trial (retrial).


When is a retrial appropriate? - two steps (from Fowler 1984 154 CLR 267)

* 1. Is the evidence cogent -> if yes ->

* 2. Is it just to order retrial?

* • Not bound by rulings etc of earlier case - it is a new trial – see Cornwell v R [2007] HCA 12:

* • Can the Crown appeal against refusal to order retrial? Rare – see R v Taufahema [2007] HCA 11

*

Week 12: Appeals 2

REVIEW:

From Magistrates Court to District court by accused (s 222 JA)

* In time?

* Fresh evidence?

Appeals from trail courts to CA by accused

* In time? s 671 QCC; if not, is it in the interests of justice?


* Need to seek leave (fact) or by right (law)? s 668D QCC;


* Fresh evidence? s 671B QCC


* Grounds (unreasonable verdict / wrong in law/ miscarriage)?

* s 668E(1) QCC


* Substantial miscarriage? - proviso s 668E(1A) QCC or

* Fundamental error?
(Wilde)

* Retrial appropriate? s 669 QCC

Appeals Against Sentence from Magistrate’s Court

Defendant:

* Where plead not guilty: s 222(1) JA to appeal to District Court

* Where plead...