Appellate Work in the Context of Legal Aid

1. Appellate Work in the Context of Legal Aid Stephen Odgers SC Belinda Rigg SC Sophia Beckett

2. Report of the Review of Legal Aid NSW Higher Court Criminal Appeals Policies and Procedures Legal Aid NSW May 2017

3. Summary of the Review findings • During the review period, Legal Aid NSW received around 3,500 applications for aid for appeals to the CCA and refused the majority of them • Grants made in 19.5% of cases. • Budget for higher court appeals represents approximately three per cent of overall budget for legal services • Appeals to the CCA were upheld in an average of 40.7% cases • Appeals against sentence in the CCA were upheld in an average of 32% of cases • Appeals against conviction in the CCA were upheld in an average of 46% of cases • All grounds appeals were upheld in 35% of cases • Special Leave to Appeal in the high Court against decisions of the CCA was granted in 10 out of 22 cases • The High Court has upheld six of nine legally aided appeals heard.

4. Recommendations • Clearer prescription of matters to be addressed by counsel when assessing the prospects of success on an appeal; • A guideline on what constitutes an appropriate use of Legal Aid NSW funds in sentence appeals • A strengthened recruitment and monitoring process for junior counsel appearing in higher court appeals • Obligations of legally aided solicitors who instruct counsel in appeals • Training about data entry and compliance • Improved training and resource sharing about appeals among the legal profession • Publication of information concerning Legal Aid NSW’s statutory function and appeals policies

5. Retention of the eligibility test for higher court appeals Legal aid is available for CCA and High Court appeals where • the applicant meets the Means Test and the Unpaid Contribution Test, • The matter meats the Merit Test A, • The Availability of funds Test, and • Legal Aid NSW is satisfied that it is an appropriate expenditure of limited public legal aid funds. Merit Test A • Two limbs: • Nature and extent of: • Any benefit that the applicant might expect to gain by receiving legal aid or; • Any disadvantage or harm to the applicant that might result from being refused legal aid; and • Whether the applicant has reasonable prospects of success.

6. Availability of Funds and appropriate expenditure Test Availability of funds • In general, this test is relevant in rare cases where, due to insufficient funding, the Board of Legal Aid NSW decides to suspend or cease grants in a category of matters. • This is not currently relevant to grants in criminal appeals. Appropriate Expenditure of Public Legal Aid Funds • Since 1998, legal Aid NSW must also be satisfied that the appeal for which legal aid is sought is an appropriate expenditure of public legal aid funds • This additional criterion provides a broad discretion to refuse legal aid notwithstanding a proposed appeal may have strict legal merit.

7. Sentence Appeal Guideline • The applicant for legal aid must have been sentenced to a term of imprisonment; and • The applicant’s non-parole period will not expire before the appeal could be prepared • Other exceptional circumstances include a special disadvantage or the applicant being under the age of 18, the appeal raises an important question of law or an issue of civil liberties, is a suitable vehicle for establishing new legal precedent or involves a public interest issue.

8. High Court Appeals • Must be approved by Director, Crime or Grants after full advice from counsel • Full written merit advice, addressing both limbs of the Merit Test A is obtained for all cases considering special leave to appeal to the high Court, and • The Director, Crime or Grants, approve the grant of legal aid for appeals to the High Court, after reviewing the merit advice and specifically addressing the question whether the case provides a good use of public funds. • The relevant Director should consult the CEO in appropriate cases including for example when constitutional issues are the main basis of the application.

9. What the statistics tells us.Trends in appeal outcomes* • The number of all appeals (conviction and sentence) is between 8.8 to 9.7 per cent of all proven cases. • The number of conviction appeals was 20 – 26 per cent of cases where there was a guilty verdict after trial. • Both the numbers and the success rates in appeals in NSW have been trending downwards over last decade. • Legally aided appeal outcomes over the review period have however remained generally stable. • The CCA finalised an average of 285 cases a year in the review period. • In 2015 the CCA heard 214 appeals: 208 appeals against sentence and 88 conviction appeals. *Noting that the data concerning appeals later than 2015 is not yet available.

10. Conviction appeals in the NSW CCA

11. An overall success rate of 26.8 per cent for period 2005-2015. • This is drop from the previous decade (noting a high success rate in 2001 , of 48.5%). • In 2015 the lowest overall appeal success rate was recorded at 15%. The drop in the success rate was attributed to: • A decrease in the number of admissibility and misdirection errors at first instance; • Increased judicial education particularly regarding complicity and sexual assault; • Increased tendency of the CCA to invoke Rule 4 of the Criminal Appeal Rules indicating that if the issue challenged on appeal was not objected to at trial, an appellant’s chances of success on appeal are increasingly limited.

12. Severity Appeals in the NSW CCA

13. Leaving aside 2013 (due to appeals as a result of the High Court Muldrock decision), success rates have averaged at 40 per cent, the highest recorded success rate being in 2011, at 49.5 percent. • There has been a steady decline in the number of severity appeals between 2000 and 2012. • There is a lower success rate for homicide appeals than offences against good order and sexual assault.

14. The High Court • A maximum of six grants for Special Leave to Appeal applications were made in any one year in the review period. • No more than three legally aided cases went to a high Court hearing in any one year. • Special Leave to Appeal against decisions of the CCA has been granted in ten out of twenty two cases. • The High Court has to date upheld six of the nine criminal appeals run by Legal Aid NSW

15. Observations on the Merit Assessment Process The review considered the grounds argued in a number of sample (unsuccessful) appeals and concluded that they were ‘less convincing’ because: • Arguments appeared to be unsupported by the evidence and/or remarks of the judge • Arguments were contrary to prior authority (or overlooked relevant prior authority) • Grounds of appeal argued the judge had erred in making a discretionary decisions, but did not assert manifest excess • The arguments in support of a manifest excess ground, or why a lesser sentence was warranted in law under s 6(3), were brief and unsupported by prior authorities and/or statistics

16. Manifest Excess • Rarely argued as a single ground of appeal, however the quality of manifest excess arguments was variable. • Single ground in only 5 per cent of cases. • Of the randomly selected matters, a ground arguing manifest excess was argued in 59 per cent of random sentence appeals and all grounds appeals reviewed • Of the matters identified through AustLII a ground arguing manifest excess was argued in 71 per cent of sentence or all grounds appeals reviewed. • Manifest excess was upheld in 17 per cent of the matters in which it was argued. This is slightly lower than the general success rate of sentence appeals of 23 per cent.

17. Parity • Parity was the second most common ground of appeal argued in sentence matters • A Parity ground was argued in 19 per cent of the sentence appeals and all grounds appeals reviewed. • It was upheld in 35 per cent of those matters in which it was argued.

18. Accumulation • Accumulation was the third most common ground of appeal in sentence matters. • This was argued in 12 per cent of matters reviewed • It was upheld in 22 per cent of the matters where it was argued.