The Supreme Court Act assumes an appeal is brought by a party to the proceeding below. The detail is in the definitions and in the provisions dealing with cross-appeals and the prosecution.
Who the Act treats as a party
“Appellant” includes a person who wishes to appeal under this Act.
“Party” includes, in relation to criminal proceedings, a prosecutor and a defendant.
“Defendant” includes a person against whom relief is sought in a matter, or who is required to attend the proceeding as a party, and in criminal proceedings includes the accused.
“Plaintiff” includes a person seeking relief against another person by any form of proceedings in the Supreme Court or the National Court, and in criminal proceedings includes the prosecutor.
The definition of appellant is deliberately wide, and it operates from before the appeal is instituted — which is why the Act can speak of an appellant applying for an extension of time or for leave.
The practical test — who is affected
A copy of the notice of appeal shall be served without delay on each party —
(a) affected by the relief sought by the notice of appeal; or
(b) interested in maintaining so much of the judgment as is appealed from;
and upon the associate to the primary judge.
Rule 13 identifies the people with a stake in the appeal: those affected by the relief sought and those interested in maintaining the judgment. Those are the categories that matter, and a person in either of them is a proper party to the appeal.
A person who was not a party below, and whose interests are not engaged by the relief sought, has no place in the appeal — unless added under Order 11 Rule 11.
Adding a party on appeal
The Court or a Judge may order that any person be added as a party to proceedings under these rules, or that the proceedings be amended, and may impose such conditions as appear just, and give all consequential directions.
Order 7 Rule 14 allows the Court or a Judge to direct that the notice of appeal be served on any other person, that service on a particular party be dispensed with, or that service be effected in a particular manner.
Between them, Rules 11 and 14 give the Court ample power to bring in a person whose interests are affected but who was not joined below.
A respondent who is also dissatisfied
A respondent who desires to appeal from any part of the judgment, or to seek a variation of a part of the judgment, need not institute a substantive appeal.
Instead, in addition to complying with Order 11 Rule 2, they shall within the period or extended period provided for by section 17 of the Act, file in the registry a notice of cross-appeal.
A cross-appeal must be filed within the section 17 period — the same 40 days, running from the date of the judgment, or such extended period as has been allowed.
A respondent who waits to see whether the appellant proceeds, and then decides to cross-appeal, will usually be out of time. See cross-appeals.
Appeals by the State
Section 24 — the Public Prosecutor against sentence. The Public Prosecutor may appeal against any decision of the National Court, whether on appeal or sitting as a court of first instance, as to sentence, and the Supreme Court may in its discretion vary the sentence and impose such sentence as it thinks proper. In this section “sentence” includes any order made on conviction with reference to the person convicted or their property.
Section 25 — against the quashing of a conviction. Where the National Court has given a judgment quashing a conviction, or any count or part of a charge, the Public Prosecutor may appeal, and the Court may determine the appeal and, if it is sustained, make such order for the prosecution of the trial as it thinks necessary or desirable.
Section 26 — reference by the Principal Legal Adviser. Where a person tried on indictment has been acquitted and the Principal Legal Adviser desires the Court’s opinion on a point of law arising in the case, they may within 40 days after the acquittal refer the point. A reference does not affect the trial or any acquittal in it.
It is not an appeal against an acquittal. The acquittal stands regardless of the answer. It is a mechanism for settling a point of law for the future.
Section 26(3) prohibits any report of the proceedings that discloses the name or identity of any person charged at the trial or affected by the decision, and section 26(4) makes publication in contravention punishable as contempt.
See references after acquittal and whether the State can appeal an acquittal.
Appellants without a lawyer
Where a person appeals or applies for leave to seek review in any criminal proceedings, the Duty Judge shall in each case inquire whether the appellant or applicant has a lawyer.
If there is none, the Duty Judge shall direct the Registrar to notify the Office of the Public Solicitor that at the next mention a senior lawyer is required to appear and notify the Court whether the Public Solicitor will provide legal aid, advice and assistance.
The Duty Judge shall also make a preliminary assessment and consider a direction to the Public Solicitor under Constitution section 177(2)(b).
A mandatory inquiry, not a discretion. See representing yourself.
Sources
- Supreme Court Act (Chapter 37) — ss 1, 17, 24, 25, 26
- Supreme Court Rules 2012 — O 7 rr 13, 14, 27, Div 23; O 11 rr 2, 11
- Constitution — s 177(2)(b)
Order 7 Division 23 was inserted by the Supreme Court (Miscellaneous Amendments) Rules 2021 and is taken from the consolidation of the Rules as at 6 March 2024; the version on PacLII may not reflect it.
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.