A convicted person who appeals usually asks the same question first: do I have to go to prison while the appeal is heard? The answer is yes, unless a Judge grants bail. The Act treats imprisonment and money orders differently.
Imprisonment: no automatic stay
Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings.
Section 19 sits in the civil Division of the Act, but the principle applies to sentences through the general law and through section 5(1)(e) and section 10(1)(c), which give a Judge the power to admit an appellant to bail, a power that would be unnecessary if the appeal suspended the sentence. The warrant of commitment issued by the National Court remains in force. Time served while the appeal is pending counts towards the sentence.
Bail pending appeal
Any power of the Supreme Court to admit an appellant to bail may be exercised by a Judge in the same manner as by the Court. Where proceedings under the Rules are pending, the court or a Judge may make such orders as are considered necessary for the custody or release on bail or otherwise of a person in custody, the custody and production of exhibits, the suspension or payment of any fine, and the suspension or variation of any order relating to restitution of property.
The substantive test is in section 11 of the Bail Act, which applies to a person who has appealed against conviction or sentence, and the Court has consistently required exceptional circumstances: the constitutional right to bail under section 42(6) belongs to a person charged, not a person convicted. See bail pending a Supreme Court appeal. An application is in Form 4 to the Duty Judge, and a refusal can be renewed before the full Court under section 10(2). See asking the full Court to reconsider.
Fines
A fine is a sentence and is payable when the National Court orders, but Order 11 Rule 8(c) lets a Judge order its suspension while the appeal is pending. Where the fine carries a default term of imprisonment, the application should seek suspension of both. Section 8(2) of the Act provides that the Supreme Court shall not increase a sentence because of evidence received on the appeal, though under section 23(4) it may substitute a more severe sentence on an appeal against sentence, which is a risk an appellant against sentence must weigh. See whether the Supreme Court can increase your sentence.
Compensation, costs and restitution: suspended
(1) The operation of any order made on conviction for (i) the payment of compensation or of any of the expenses of the prosecution; or (ii) the restoration of any property to any person; and of any provision of law re-vesting stolen goods in the original owner, is (unless the court directs to the contrary where title to the property is not in dispute) suspended (c) until the expiration of 40 days after the conviction, or any further period allowed for giving notice of appeal; and (d) where notice of appeal or of an application for leave is given, until the determination of the appeal. (2) The order does not take effect as to the property if the conviction is quashed. (3) The Supreme Court or a Judge may give directions for the custody of the property during the suspension. (4) The Supreme Court may annul or vary such an order even if the conviction is not quashed.
| Order | While the appeal is pending | Source |
|---|---|---|
| Imprisonment | Continues; bail only on application | ss 5(1)(e), 10(1)(c); Bail Act s 11 |
| Fine | Payable unless a Judge suspends it | O 11 r 8(c) |
| Compensation to the victim | Suspended automatically for 40 days and then until the appeal is decided | s 30(1) |
| Prosecution costs | Suspended automatically | s 30(1) |
| Restitution of property; revesting of stolen goods | Suspended automatically unless the court directs otherwise where title is not disputed; directions for custody available | s 30(1), (3) |
| Death sentence | Not carried out until 40 days have passed and any appeal is determined | s 29(3) |
| Exhibits | Held; a Judge may order their custody, preservation and production | O 11 r 8(b) |
When the appeal is decided
If the conviction is quashed under section 23(3), a verdict of not guilty is entered and the appellant is released; section 30(2) confirms that suspended property orders never take effect. If the sentence is reduced under section 23(4), the new sentence runs from the original date and time served is credited. If the appeal is dismissed, the sentence continues and any suspended compensation or restitution order becomes enforceable. If a new trial is ordered under section 28, the Court may under section 28(2) make orders for the appellant’s custody or bail pending the retrial. A prisoner appealing without a lawyer starts the process on the Second Schedule form; see how a prisoner appeals without a lawyer.
Sources
- Supreme Court Act (Chapter 37) — ss 5, 8, 10, 19, 23, 28, 29, 30
- Supreme Court Rules 2012 — O 11 r 8; Form 4
- Bail Act (Chapter 340) — s 11
- Constitution — s 42(6)
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.