Supreme Court (Court of Appeal) Amendment Rules (No. 2) 2022 (WA)
16 December 2022 GOVERNMENT GAZETTE, WA 5881 JUSTICE
JU301
Supreme Court Act 1935
Supreme Court (Court of Appeal) Amendment
Rules (No. 2) 2022
SL 2022/209
Made by the judges of the Supreme Court.
1. Citation
These rules are the Supreme Court (Court of Appeal)
Amendment Rules (No. 2) 2022.
2. Commencement
These rules come into operation as follows —
(a)
rules 1 and 2 — on the day on which these rules are published in the Gazette;
(b) the rest of the rules — on the day on which the Criminal Form 1, lA or 2, Appeals Amendment Act 2022 section 4 comes into
operation.
3. Rules amended These rules amend the Supreme Court (Court of Appeal)
Rules 2005.
4. Rule 3 amended
(1) In rule 3(1) in the definition of appeal notice delete "Form 1
or 2," and insert:
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(2) In rule 3(1) in the definition of criminal appeal delete
"Division 3 or Part 3;" and insert:Division 3, Part 3 or 3A; 5. Rule 7 amended
In rule 7(2) delete "on the basis of the documents filed without requiring the parties to attend a hearing," and insert:
in the exercise of jurisdiction under subrule (l)(b) or (c),
6. Rule 23 amended
In rule 23(2) after "1," insert:
1A,
7. Rule 24 amended
In rule 24(1) after 1," insert:
1A,
8. Rule 26B inserted
At the beginning of Part 5 Division 2 insert:
26B. Term used: alleged evidence In this Division
alleged evidence means evidence that is alleged to be
(a) fresh and compelling; or (b) new and compelling.
9. Rule 27 replaced
Delete rule 27 and insert:27. When appeal is commenced
An appeal is not commenced until an appeal notice (with any other document required by rule 28, 28A or 29) has been
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(a) filed in accordance with rule 28, 28A or 29, as the case requires; and (b) served in accordance with rule 29A. 10. Rule 28 amended
(1) Delete rule 28(1) and insert:
(1) To commence an appeal, or to apply for an extension
of time within which to commence an appeal, under the
Criminal Appeals Act 2004 Part 2 Division 3 or Part 3
the appellant must file
(a) a Form 1; and (b) any document required by subrule (2).
(2) In rule 28(5):
(a) delete "In a criminal appeal the appellant, when" and insert: When
(b) delete "appellant's case" and insert: "Appellant's case"
(c) after "32," insert:
the appellant
(3) Delete rule 28(6) and (7).
Note: The heading to amended rule 28 is to read: Commencing appeal under Criminal Appeals Act 2004 Part 2
Division 3 or Part 311. Rule 28A inserted
After rule 28 insert:
28A. Commencing appeal under Criminal Appeals
Act 2004 Part 3A
(1) To commence an appeal under the Criminal Appeals
Act 2004 Part 3A the appellant must file
(a) a Form 1A; and (b)
an affidavit containing the information set out in subrule (2); and
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(c) the "Appellant's case" in accordance with
rule 32.
(2) For the purposes of subrule (1)(b), the information is as
follows
(a) details of all previous appeals against the conviction; (b) a statement of the issues in dispute at the trial, with reference to that part of the trial transcript which shows those issues to be in dispute; (c) the alleged evidence relating to the offence the subject of the conviction that is to be relied on in the appeal; (d) whether the evidence set out in accordance with paragraph (c) is alleged to be fresh and compelling, or new and compelling; (e) an explanation as to why the alleged evidence that is to be relied on in the appeal was not tendered during the trial or during any previous appeal; (f) when the appellant, and any legal practitioner representing the appellant, became aware of the alleged evidence that is to be relied on in the appeal; (g) if the evidence is alleged to be fresh and compelling details, if any, of alleged negligence or incompetence of the legal practitioner representing the appellant at the trial;
(h) a statement of information or belief as to whether, with the exercise of reasonable diligence, the alleged evidence could have been tendered at the trial.
(3) A Form 1A may be filed together with an application, made in accordance with rule 44, for an interim order. (4) For the purposes of the Criminal Appeals Act 2004 section 35G(2), a Form 1A filed in accordance with this rule is taken to be an application for leave to appeal. 12. Rule 29 amended
(1) Delete rule 29(1) and insert:
(1) To commence a civil appeal, or to apply for an
extension of time within which to commence a civil
appeal, the appellant must file
(a) a Form 2; and
16 December 2022 GOVERNMENT GAZETTE, WA 5885
(b) any document required by subrule (2).
(2) Delete rule 29(4) and (5). Note: The heading to amended rule 29 is to read: Commencing civil appeal
13. Rule 29A inserted
After rule 29 insert:
29A. Service of appeal documents (1) Any document filed under rule 28, 28A or 29
(a) must be served on the respondent personally; or (b)
if the appellant is in custody may be served on the respondent by post, fax or email.
(2) As soon as practicable after serving the respondent the
appellant must file a Form 3 (Service certificate).14. Rule 31B inserted
After rule 3 1 A insert:
31B. Time within which to ifie "Appellant's case" (1) This rule applies to an appeal commenced under
rule 28 or 29.(2) After an appeal notice is filed, the appellant must file
the "Appellant's case" in accordance with rule 32
within a period of—
(a) in the case of an appeal under the Criminal Appeals Act 2004 Part 2 Division 3 or Part 3 56 days after the day on which the appeal
notice is filed, unless a single judge or registrar
orders otherwise; or(b) in the case of a civil appeal, unless a single judge or registrar orders otherwise (i) 35 days after the day on which the appeal notice is filed; or
(ii) if the appeal is an interlocutory civil
appeal 14 days after the day on which the appeal notice is filed.
15. Rule 32 amended
(1) Delete rule 32(1) and (2).
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(2) In rule 32(3) delete "appellant's case" and insert: "Appellant's case" (3) In rule 32(4):
(a) delete paragraph (b) and insert:
(b) must state the grounds, and concise particulars
of them, succinctly in numbered paragraphs;
and(b) in paragraph (c) delete "must state, for each ground," and insert: must, for any ground that alleges an error by the primary
court, state(c) in paragraph (d) delete "must identify," and insert: must, for any ground that alleges an error by the primary
court, identify(d) in paragraph (e) delete "law." and insert: law; and
(e) after paragraph (e) insert:
(f)
must, for any ground that alleges a miscarriage of justice, state the basis on which the
miscarriage of justice is alleged to arise.
(4) After rule 32(4) insert: (4A) For the purposes of subrule (4)(b), the grounds and their particulars must not merely allege
(a) that the primary court erred in fact or in law; or (b) that the decision of the primary court (i) is against the evidence or the weight of evidence; or
(ii) is unreasonable and cannot be supported having regard to the evidence; or
(iii) is unsafe or unsatisfactory;
or
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(c)
in the case of an appeal against a sentence that the sentence is excessive or inadequate; or
(d) in the case of an appeal against conviction
(i) that the verdict of guilty for which the
conviction is based is unreasonable and
cannot be supported having regard to
the evidence; or(ii) that the judge made the wrong decision on a question of law; or
(iii) that there was a miscarriage of justice.
(5) In rule 32(5):
(a) in paragraph (c)(iii) delete "ground;" and insert: ground; and
(b) after paragraph (c)(iii) insert: (iv) in the case of an appeal under the
Criminal Appeals Act 2004 Part 3A each passage in the alleged evidence on which the appellant relies in support of the ground;
16. Rule 33 amended
(1) In rule 3 3(2) delete "appellant's case," and insert: "Appellant's case", (2)
In rule 33(3) and (4) delete "respondent's answer" and insert: "Respondent's answer" (3) In rule 33(5):
(a) in paragraph (b)(iii) delete "relies." and insert: relies; and
(b) after paragraph (b)(iii) insert: (iv) in the case of an appeal under the
Criminal Appeals Act 2004 Part 3A
each passage in the appellant's alleged
evidence on which the respondent relies.
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17. Rule 34 amended
In rule 34(1) delete "respondent's answer" and insert:
"Respondent's answer"
Note: The heading to amended rule 34 is to read:
When "Appellant's reply to respondent's notice of contention" is required
18. Rule 36 amended
In rule 36(1) delete "respondent's answer," and insert:
"Respondent's answer",
19. Rule 38 amended
(1) In rule 38(2):
(a) in paragraph (g) delete "appellant's case filed under" and insert: "Appellant's case" filed in accordance with
(b) in paragraph (h) delete "respondent's answer" and insert: "Respondent's answer"
(c) in paragraph (j)(i) delete "appellant's case; and" and
insert: "Appellant's case"; and
(d) in paragraph (jXii) delete "respondent's answer;" and insert: "Respondent's answer";
(e) after paragraph (j) insert:
Oa) any affidavits filed with the appeal notice;
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(2) In rule 38(3):
(a) in paragraph (h) delete "included." and insert: included;
(b) after paragraph (h) insert:
(i) in the case of an appeal under the Criminal Appeals Act 2004 Part 3A— (i) the Court of Appeal's formal decision in each previous appeal; and
(ii) the Court of Appeal's written reasons for its decision in each previous appeal; and
(iii) any document filed in a previous appeal that a registrar orders to be included.
(3) In rule 38(4):
(a) after paragraph (c) insert: (Ca) in the case of an appeal under the Criminal Appeals Act 2004 Part 3A an electronic version of each appeal hearing transcript;
(b) in paragraphs (d) and (f) after "court" insert: and, if applicable, the Court of Appeal,
(4) In rule 38(4A):
(a) delete "(4)(c)" and insert:
(4)(c), (Ca)
(b) delete paragraphs (a) and (b) and insert:
(a) the "Appellant's case"; or (b) the "Respondent's answer"; or
(5) Delete rule 3 8(5) and insert:
(5)
The documentary exhibits must be arranged in the Green Appeal Book in the order in which they are lettered or numbered as exhibits in the primary court or
the Court of Appeal, as the case may be, unless a
registrar orders otherwise.
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Note: The heading to amended rule 38 is to read:
Contents of appeal book
20. Rule 42A amended
In rule 42A(c) delete "the issue" and insert:
in the ease of a civil appeal the issue 21. Rule 43 amended
After rule 43(2 )(fa)(i) insert:(ia) the appellant has not filed the required documents under rule 28, 28A or 29, as the case may be; or
22. Rule 54 replaced
Delete rule 54 and insert:
54. Orders made under Criminal Appeals Act 2004
(1) In an appeal under the Criminal Appeals Act 2004
Part 3A the Court of Appeal may refuse to make an
order under section 40(1) of that Act that may result in
the production of evidence if the Court of Appeal is not
satisfied that making the order will result in the
production of evidence that
(a) is likely to be relevant and probative; and (b) may assist the Court of Appeal to determine the
issue of whether to give leave to appeal.
(2) The Criminal Procedure Act 2004 Part 5 Division 7
and Schedule 4, and the Criminal Procedure
Rules 2005, apply for the purposes of an order made by
the Court of Appeal under the Criminal Appeals
Act 2004 section 40(1) requiring
(a)
a person to produce to the Court of Appeal any record or thing; or
(b)
a witness to attend before the Court of Appeal or before an examiner appointed by the Court of Appeal.
(3) Unless the Court of Appeal orders otherwise, a witness
summons issued for the purposes of the Criminal
Appeals Act 2004 section 40(1) must be served
(a) by the party that applied for the order under
section 40(1) of that Act; and
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(b) in accordance with the Criminal Procedure
Act 2004 section 162.
23. Rule 59 amended
After rule 59(1A) insert:(113) Subject to subrule (2), the appeal is deemed to be
dismissed on filing a Form 16.
24. Schedule 1 Form 1 amended
In Schedule 1 Form 1:
(a) delete "(criminal)" and insert: (Criminal Appeals Act 2004 Pt. 2 Div. 3 and Pt. 3)
(b) in note 3 delete "parol" and insert: parole
Note: The heading to amended Schedule 1 Form 1 is to read:
Appeal notice (Criminal Appeals Act 2004 Pt. 2 Div. 3 and Pt. 3)
(r. 28)25. Schedule 1 Form 1A inserted After Schedule 1 Form 1 insert:
1A. Appeal notice (Criminal Appeals Act 2004 Pt. 3A)
(r. 28A)
Supreme Court of Western Australia No:
Court of Appeal Appeal notice (Criminal Appeals Act 2004 Pt. 3A) Parties to the appeal Appellant
Respondent
Offender Full name: Date of birth: Primary court's decision
Primary court at Indictment No. Date of decision Judicial officer Decision details Conviction recorded 1 Previous appeal details Date appeal(s) dismissed Matter number(s)
Appeal details Notice of appeal The appellant applies to the Court of Appeal for leave to
appeal against the above conviction.
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Notice to the respondent If you want to take part in this appeal you must file a Form 4 under the Supreme Court (Court ofAppeal) Rules 2005 within 7 days after you are served with this
notice and serve it on the appellant.
Legal representation
Is the appellant legally represented in this appeal? Yes/No Is the appellant applying for legal aid? Yes/No
Appellant's details for service 2
Name
Street address
Telephone Fax No. Email address Reference No. Signature of appellant or
Date:
legal practitioner Appellant/Appellant's legal practitioner Notes to Form 1A
1. Describe the offence, e.g. dangerous driving causing death. If there is more than 1 conviction, state the details of the other convictions.
2. If the appellant is represented by a legal practitioner, the appellant's details below must be the legal practitioner's. If the appellant is self-represented, the details must be the appellant's personal details.
26. Schedule 1 Form 3 amended
In Schedule 1 Form 3 in the note delete "rule 28(l)(d) (for a criminal appeal) or 29(1)(d)" and insert:
rule 28(1)(b) (for an appeal under the Criminal Appeals Act 2004 Pt. 2
Div. 3 or Pt. 3) or 29(1)(b)Note: The heading to amended Schedule 1 Form 3 is to read: Service certificate (r. 29A(2))
Date: 12 December 2022.
The Hon. Chief Justice Peter Quinlan Chief Justice of Western Australia
Supreme Court of Western Australia.
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