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District Court 20 April 2007

R v HOLTEN

[2007] NSWDC 58

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST DECISION OF LOCAL COURT AMENDMENT OF NOTICE OF APPEAL

Citation: R v Holten [2007] NSWDC 58
Court: NSW District Court
Date: 20 April 2007
Judge(s): Berman SC DCJ

Background

The appellant was convicted by a magistrate of assaulting a police officer in the execution of his duty. He and his legal representatives always intended to challenge both the conviction and the sentence, but through an administrative error the notice of appeal filed on his behalf stated only that the penalty was too severe. This confined the appeal, as filed, to a severity appeal rather than an all grounds appeal.

The error came to light when no one appeared at the first listing date. When the appellant's solicitor later appeared before the court, he flagged the mistake but did not formally apply for leave to appeal against conviction. By that point, the 28-day appeal period under the legislation had already expired, though the matter remained within the three-month extended period.

The appellant subsequently filed a notice of motion seeking to amend the notice of appeal to add a conviction ground. The Crown opposed the application, arguing that a severity appeal and a conviction appeal are two distinct forms of appeal, and that one cannot simply be converted into the other by amendment.

  • Whether the District Court has power under the Crimes (Appeal and Review) Act to amend a notice of appeal to add a conviction ground after the 28-day appeal period has expired.
  • Whether converting a severity appeal to an all grounds appeal constitutes an impermissible new appeal rather than a permissible amendment.
  • Whether, if the power exists, it should be exercised on the facts of this case.

Decision

The Court held that it does have power to allow such an amendment. The legislation expressly permits notices of appeal to be amended, and the Court found no legislative basis for drawing a distinction between amendments that change the particular aspect of a sentence challenged and amendments that expand the appeal to include a conviction ground. Both types of amendment concern the grounds of appeal, and the same rules apply to each.

The Court rejected the Crown's argument that a severity appeal and a conviction appeal are so fundamentally different that one cannot be converted into the other through the amendment process. In the Court's view, no separate statutory warrant existed for treating the two types of grounds differently, and accepting the Crown's position would create an arbitrary distinction unsupported by the legislation.

The Court emphasised, however, that the power to amend does not mean such amendments are available as of right. Section 62(2) of the legislation operates as an important constraint, and whether an amendment "ought" to be allowed remains a matter for the judge hearing the application on a case-by-case basis. On the facts here, the Court found the amendment should clearly be granted: there was no fault on the appellant's part, no prejudice to the Crown, and the mistake was purely administrative.

Orders Made

  • The notice of appeal signed on behalf of the appellant on 24 August 2006 is to be amended to include the following additional ground of appeal: "I am appealing the above conviction because I am not guilty."

Key Takeaways

  • The District Court held that it has power under the Crimes (Appeal and Review) Act to amend a notice of appeal to add a conviction ground, even after the 28-day appeal period has expired.
  • No legislative basis exists for treating amendments to conviction grounds differently from amendments to sentence grounds. The same amendment power applies to both.
  • A severity appeal can, as a matter of power, be expanded to become an all grounds appeal through the amendment process. It does not constitute the filing of an entirely new and separate appeal.
  • The existence of the power does not guarantee its exercise. Section 62(2) remains a constraint, and courts will assess on the specific facts of each case whether an amendment of this kind ought to be permitted, particularly where there is delay between the original filing and the amendment application.
  • Where no prejudice to the prosecution is established and the error was purely administrative rather than any fault of the appellant, the balance weighs strongly in favour of permitting the amendment.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 13, 14, 20, 62
- Justices Act (NSW)
- Justices Legislation (Repeal and Amendment) Act (NSW)

Cases: No cases were cited in the provided text.