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What if I want to abandon (stop) my appeal?

If you decide to stop your appeal, you can abandon it by filing a Form 30 – Notice of abandonment of appeal or application (see Sample documents and forms). Blank forms are available from the Court of Appeal registry or on the Queensland Courts website (www.courts.qld.gov.au on the forms page under the ‘Criminal Practice Rules 1999’ heading).

You can formally abandon your appeal up to and including the date of the appeal, but you should abandon as soon as you decide to stop your appeal. File the Form 30 – Notice of abandonment in person at the Court of Appeal registry or file it by mail. If you are in prison, you can file it by giving the original to Sentence Management at your centre.

If you do not lodge this form, your appeal will still go ahead. If you are in prison, you will be brought before the Court of Appeal even though you do not want to go ahead with it.

The Court of Appeal registry contact details are:
Queen Elizabeth II Courts of Law
Ground floor, 415 George Street
Brisbane Qld 4000
Phone: (07) 3247 4702
Email: courtofappeal.registry@justice.qld.gov.au

Court of Appeal registry
PO Box 15167
City East Qld 4002

When you file the Form 30 – Notice of abandonment at the Court of Appeal registry, your appeal process will end.

It can be very difficult to start your appeal again once you have abandoned it. Consider your decision carefully before abandoning your appeal.

Step 3 — Receive a hearing date for the appeal

Once you’ve filed your Form 26 – Notice of Appeal, it may take several months before you get a hearing date in the Court of Appeal. The Court of Appeal registry will need to get the transcript of your trial or sentence and all the exhibits, and there may be many other appeals waiting to be heard.

The registrar will write to tell you a date for the appeal hearing.

Can I get bail?

If you have been sentenced to a term of imprisonment, you will not automatically receive bail before your appeal hearing. Appeal bail is granted only in exceptional circumstances. For example, if you received a short term of imprisonment and all or most of it would be served before the appeal hearing, you might be granted bail.

If you don’t have bail, you can write to the Court of Appeal registrar to ask for an early hearing date.

If you want to apply for bail, see a prison duty lawyer, the Prisoners’ Legal Service or Sentence Management about bail. They may be able to give you Legal Aid Queensland’s Bail by mail guide.

Step 4 — Receive your Appeal Record Book

The Appeal Record Book contains the full transcript of your previous hearing, the judge’s summing up and sentencing remarks, and copies of exhibits. The Appeal Record Book will be sent to you when it becomes available. If you are representing yourself, you do not have to pay for the Appeal Record Book.

The appeal will generally be argued on the basis of the evidence that was before the sentence or trial court. Remember, your appeal is not another opportunity for you to hold another trial or sentence hearing.

The Appeal Record Book may not contain all the items or documents that were tendered (given) to the sentencing judge. You can write to the Court of Appeal registry and ask them to include a copy in the Appeal Record Book of any items that were tendered to the sentencing judge on your behalf (eg references).

If you want to rely on an exhibit that can’t be included in the Appeal Record Book (eg some video footage), you may ask the registry to have it present in court on the day of the appeal.

Step 5 — Prepare your outline of argument

You must submit a written statement to the Court of Appeal outlining the reasons why your appeal should be granted. This written statement is called an outline of argument and should include the arguments and issues you want the Court of Appeal to consider. The outline must not be more than 10 pages.

It is very important you put all your reasons in writing, as the Court of Appeal judges will read and consider your reasons before the day of appeal.

On the day of the appeal, the judges will probably not want you to re-argue what you have already put in writing. They will simply want to ask you questions to clear up any misunderstandings or discrepancies. This is why it is so important to argue fully in writing and lodge your arguments with the Court of Appeal registry before the day of the appeal hearing.

You may want to include case authorities (also known as precedents) in your outline of argument. Case authorities are published judgments in previously decided cases. You could use these to show how other people charged with the same offence received a different outcome from the court (eg a lesser sentence or no conviction recorded). Generally, the Court of Appeal will only consider its own or other Appeal Court decisions. Appeal case authorities may be found in university law libraries and the Supreme Court Library in Brisbane. You can also find case authorities on the Supreme Court Library website (www.sclqld.org.au/caselaw/QCA).

Your arguments will be different, depending on whether you are appealing your conviction or sentence. Some common reasons for appealing both are listed below.
If you are appealing your conviction How to start an appeal for examples of grounds and reasons for appealing against your conviction.

In your outline of argument, make sure you:

  • identify any errors you think the judge made
  • only refer to evidence given before the court at trial, not at committal
  • don’t refer to evidence that witnesses gave in written statements but not in court
  • include all points of law you think were wrongly decided
  • include references to all factual matters you believe were favourable to you, which should have caused the jury to have a reasonable doubt about your guilt.

If you are appealing your sentence

See page 10 for examples of grounds and reasons for appealing against your sentence.

Keep the following points in mind when writing your outline of argument:

1. Comparable sentences

The Court of Appeal will not reduce your sentence if it is simply harsh. It must be ‘manifestly excessive’ compared to similar cases for the court to reduce the sentence.

If you want to argue your sentence is manifestly excessive, you should include details of comparable cases in your outline of argument. The court will only consider comparable cases that have similar circumstances to your case.

You may be able to get details of comparable sentences from the Prisoners’ Legal Service.

2. Parity

Parity means where two or more people commit the same crime they should not receive very different sentences.

To have parity, your co-accused’s case must be similar to your own. For example, if your co-accused had less involvement in the offence than you or was a first offender or you have a longer criminal history, then the Court of Appeal will not usually consider your sentence should be the same as your co-accused.

3. Errors in the exercise of sentencing discretion

You may be able to argue the judge made a mistake in sentencing you when they:

  • failed to take into account an important matter in your favour (eg you plead guilty very early in the process)
  • took an irrelevant fact into account (eg you face further charges you intend to plead not guilty to)
  • made a wrong finding of fact (eg the judge said the offence was pre-planned, when there is evidence it was not).

4. Totality principle

The totality principle is a legal principle that applies to people being sentenced for different crimes at different times. When a judge is sentencing a person in this situation, they need to ensure each sentence is appropriate for the crime and the total sentence is appropriate for all of the offences committed, and not excessive. You need to be prepared to argue why your total sentence was too high and what it should have been, given the total criminal offences involved.

5. Fresh or new evidence

The Court of Appeal will not usually look at evidence that was not a part of the trial or the sentence, unless there are special reasons. If you want to rely on this type of evidence in your appeal, you need to apply for the court to look at it.

The court will usually only look at new or fresh evidence where the evidence:

  • was not available at the time of the trial or sentence and
  • would have affected the outcome and
  • is credible and believable.

If you apply for new or fresh evidence to be allowed, you should address each of these three things. You will also need to file a written application for fresh evidence using Form 38 – Application for leave to adduce evidence. You can get a copy of the form from the Queensland Courts website (www.courts.qld.gov.au on the forms page). You will also need to file a supporting affidavit with the details of the fresh evidence.

6. Unacceptable grounds

You cannot use the following grounds to argue your appeal against sentence should be allowed:

You are not guilty
You were sentenced because you were found guilty or pleaded guilty. On a sentence appeal, whether you are guilty is not discussed.

You were not as involved in the crime as the prosecutor said
Unless your barrister challenged this at your sentence hearing, you cannot normally ask the Court of Appeal to consider facts that were not given to the judge at the time of your sentence.

Tips for completing your outline of argument

  • There is no set form to use for the outline of argument. You can use the sample outline of argument in Sample documents and forms as a guide
    to how to structure your outline.
  • Write the reasons for your appeal under different headings.
  • Be concise—your outline cannot be more than 10 pages.
  • Only refer to evidence actually presented to the court at trial—not evidence given at the committal—or that witnesses gave in written statements but not in court.
  • You must supply one copy of your outline of argument to the respondent and five copies to the Court of Appeal registry. A copy can be emailed to the Court of Appeal registry: courtofappeal.registry@justice.qld.gov.au
  • The court must receive your outline of argument 28 days before the appeal hearing date.
  • When writing your outline, refer to the materials in the Appeal Record Book. Include the relevant page number of the Appeal Record Book: eg R.12, L30 or LL30–45 (Record Book page 12, line 30 or lines 30–45).

Step 6 — Read the prosecutor’s outline of argument

Fourteen days before your hearing date, you should receive the prosecutor’s outline of argument stating their reasons why your conviction or sentence should not be changed. You should read the prosecutor’s outline of argument and try to think of reasons why the Court of Appeal should disagree with the prosecutor. You may have to give these further reasons to the court in person when you appear before them. You can prepare a written reply to the prosecutor’s reasons, but you don’t have to. On the day of your appeal hearing, you can tell the Court of Appeal anything you think of that was not in your written outline of argument.

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