LEGAL OPINION

THE RIGHT OF THE DIRECTOR OF PUBLIC PROSECUTIONS TO APPEAL ON QUESTIONS OF FACT

LS Makalela, LLB (Hons)

University of South Africa, Pretoria

Abstract

Background

The common law has however been modified by statute in varying degrees, both in the UK and the Commonwealth generally, and there are now five possible basic sets of situations in relation to trial on indictment -

(a) no right of appeal by the prosecutor;

(b) a right of appeal or "reference" on a point of law, but with no effect on the

outcome of the trial giving rise to it;

(c) a right of appeal against leniency of sentence;

(d) a substantive right of appeal on a point of law against acquittal;

(e) a substantive right of appeal on law, mixed law and fact, and fact alone, against acquittal. 

These categories are not of course all mutually exclusive and there are in some jurisdictions combinations of the rights under (b) and (c), or under (c) and (d) or (e). Moreover, appeals may be brought sometimes only with leave of the trial court or the appeal court (or either), sometimes without the need to obtain leave, or sometimes under a combination of restricted and unrestricted rights depending on the nature of the appeal. The basic common law situation under (a) needs no further elaboration but each of the other categories merits further examination. Right of appeal or reference on a point of law not affecting the outcome of the Trial. This was the first step towards appeals from trials on indictment taken in England and Wales. By section 36(1) of the Criminal Justice Act 1972. Where a person tried on indictment has been acquitted.  The Attorney-General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, and the court shall .... consider the point and give their opinion on it. However, the effect of such a reference was made quite clear by section 36(7) A reference under this section shall not affect the trial in relation to which the reference is made or an acquittal in that trial. Furthermore, the reference was limited to acquittals; there was no power to refer sentences. Similar provisions have been enacted in a number of jurisdictions, for example Kenya and Trinidad and Tobago. Right of appeal against leniency of sentence Although it is circumscribed by conditions, the right has now been granted to the prosecution in England and Wales. By section 36(l) of the Criminal Justice Act 1988 If it appears to the Attorney-General -

(a) that the sentencing of a person in a proceeding In the Crown Court has been unduly lenient; and

(b) that the case is one to which [Part IV] applies, he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person, and on such a reference the Court of

Appeal may:

(i) quash any sentence passed on him in the proceedings; and

(ii) in place of it pass such sentence as they think appropriate for the case

and as the court below had power to pass when dealing with him. Cases to which Part IV of the Act applies are offences triable ONLY on indictment (i.e. only the most serious offences such as homicide, rape and robbery) or offences triable on indictment or summarily which are specified in an order of the Secretary of State. It is to be noted that no change is made to the situation whereby on an appeal by AN OFFENDER the Court of Appeal cannot increase the sentence!

A similar, though less restricted, right is granted to the Solicitor General in New Zealand; he has the right to appeal, with leave of the Court of Appeal, any sentence passed on a person on conviction on indictment (unless of course that sentence is fixed by law). And under a still less restricted right the Attorney-General of Sri Lanka may appeal, without leave, to the Court of Appeal in all cases on the ground of inadequacy or illegality of the sentence imposed(by) the High Court.

Right of appeal on a point of law against acquittal This right can be seen in its most embryonic form in Western Australia where it exists only in respect of an acquittal by direction of the trial judge.

A more extended right of appeal has existed since 1930 under the Canadian Criminal Code which now gives power to the Attorney-General to appeal to the Court of Appeal, inter alia against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone. There is a mass of case law in Canada on the question of the distinction between "law" and fact" and one commentator has written that the distinction .... is a morass of irreconcilable precedents, ad hoc decisions, and judgments which tend to state that a "question of law alone” must be interpreted in the "strict sense” and then ignore that

advice." It is to be noted that the right of the Attorney-General to appeal against acquittal has been challenged as contravening the guarantees against double jeopardy in the Canadian Charter of Rights and Freedoms. The Ontario Court of Appeal held however in R v Morgentaler and others that it did not do so. A similar right of appeal exists, for example, in Malawi, where the Director of Public Prosecutions may appeal to the court against any judgment, including a finding of acquittal, of the High Court if, and only if, he is dissatisfied with such judgment upon a point of law. Subject as aforesaid no appeal shall lie against a finding of acquittal made by the High Court.

and in New Zealand. Right of appeal on law, mixed law and fact, or fact alone Although rights are sometime given only in respect of law and mixed law and fact, it is convenient to take these categories together, as once the element of fact is allowed into the appeal it must necessarily considerably widen its scope. A transition from the previous category of rights to this one can be seen most simply in the case of Tasmania. Until recently the Attorney-General's right of appeal to the Court of Criminal Appeal was by leave of the Court (of appeal) or upon the certificate of the judge of the court of trial that it is a fit case for appeal, against an acquittal on a question of law alone. However, by s.7 of the Criminal Code Amendment Act (No.83 of 1987) the word "alone" at the end of the provision was removed and the section is now construed as including questions of mixed fact and law. There are variations on this right. For example, in the Northern States of Nigeria, where the rights of the prosecutor to appeal are found in both the Federal Constitution and the Criminal Procedure Code, an acquittal may be appealed as of right on a question of law, and with leave of the trial court or the appeal court on a question of fact or mixed law and fact. Similar rights exist in Sri Lanka. Finally, for the most comprehensive power of all, one turns for example to Singapore whose law provides for an appeal by the Public Prosecutor against acquittal or sentence "on a question of fact or a question of law or on a question of mixed fact and law" without any need for leave.

POWERS OF APPELLATE COURTS

What, then, are the powers of the appellate court where the prosecutor's appeal is successful? Typical of its powers on appeal against sentence (whether by the prosecutor or the offender) are those contained in the New Zealand Crimes Act 1961 (RS VoI I)

s.385(3) - On an appeal against sentence the Court of Appeal, if it thinks that a different sentence should have been passed, shall either quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) ... as the court thinks ought to have been passed or vary .... the sentence or any part of it or any condition imposed in it; and in any other case the court shall dismiss the appeal. On a successful appeal against acquittal the court normally has powers to set aside the verdict of the trial court and either order a new trial or enter a verdict of guilty of the offence for which, in the court's judgment, the accused should have been convicted. In Canada the appellate court originally had the widest powers to order a retrial or to substitute a verdict of guilty of its own; however, since 1976 the latter power has been confined to cases which have been tried by a judge alone. Where an appeal is from a judge and jury the court can now, in allowing the prosecutor's appeal, only order a new trial. Wide as some of these powers may seem it is clear that, for, an appeal from acquittal on issues of fact to succeed, wholly exceptional circumstances must

apply in view of the heavy burden of proof which lies on the prosecution. In a 1931 Sri Lanka case (which was actually an appeal from an inferior court but to which exactly the same principles apply) Lyall Grant J, echoing sentiments referred to at the beginning of this study, said - An appeal from an acquittal is a remedy which has no place in most parts of the British Empire. The general rule is that if a person has been fairly and properly tried and acquitted, he ought not to be put in jeopardy twice for the same offence.

It is obviously not sufficient that the court should think that there is material on which another Magistrate might come to the conclusion that the accused was guilty. It must, I think, be satisfied that no other conclusion was reasonably possible but that the accused was guilty or that the Magistrate did not apply his mind to the whole evidence in the case. On the question of an appeal against an acquittal by a jury, Chief Justice Bora Laskin of the Supreme Court of Canada was, in the 1976 case of Morgentaler v the Queen, even more emphatic on the question of an appeal court's power to substitute a conviction -

.... I have been unable to find any reported Canadian case where an appellate Court, in setting aside a jury's verdict of acquittal, has entered a conviction on the very offence charged and of which the accused has been acquitted by a jury, and has not been content to order a new trial with accompanying directions. Counsel for the respective parties were unable to produce any such case, and I am not particularly surprised that they could not. Where a case is left to the jury on evidence that may be found to support a defence to the offence charged, and the

accused is acquitted, the fact that the trial judge may have erred in charging the jury on the law would ordinarily result in a direction for a new trial... It must be an unusual case, indeed, in which an appellate court, which has not seen the witnesses, has not observed their demeanor and has not heard their evidence adduced before a jury, should essay to pass on its sufficiency, either as to a defense or in support of a charge, and thereupon to substitute its opinion for that of the jury and to enter a conviction (rather than ordering a new trial) where the jury has acquitted." This case was, of course, decided on the law as it existed before the statutory amendment referred to on page 5 above.

In seeking to obtain an order for a new trial under the Canadian Criminal Code the prosecutor must not only show that there was misdirection by the trial judge, but also that the verdict would not necessarily have been the same if the trial judge had properly directed the jury, or himself. In clear cases, however, the appellate court will order a verdict of guilty to be entered. The principles for so doing were stated in the 1983 case of R v Courville, where the issue had been self-induced intoxication by drugs - Where all of the elements of the offence have been proved but the trial judge has erred in law in failing to draw the conclusion of guilt required by the facts as found by him, the court is empowered to enter a verdict of guilty. That is the case here. There is really nothing left to be tried or determined.

EXERCISE OF RIGHTS OF APPEAL

So much, then, for the law and procedure. But how are the provisions interpreted and

what criteria are applied? Our enquiries show that in those jurisdictions which allow the prosecutor to appeal from trials on indictment the power is used sparingly. There are obvious reasons for this such as the public expense involved in appeals and retrials and the embarrassment to the public prosecutor in losing appeals, with its attendant danger of Information obtained from Criminal Procedure Systems in the European Community, as according to Section 36 of The Criminal Justice Act, 1972. his department being branded as an instrument of persecution.

In cases of appeals against acquittal, or against the imposition of non-custodial sentences, there may be matters of tracing the accused, of re-arrest, and sometimes also of re-opening issues of bail. However, unless express provisions allow it there would normally be no power to re-arrest until such time as the appellate court orders a new trial, substitutes a verdict of guilty or imposes a custodial sentence. In Canada, for example, there are no provisions in the Criminal Code providing for conditions of bail where a person is neither an accused nor an appellant sentenced to custody. Presumably similar considerations would be given to bail as in the case of an accused awaiting his initial trial, although the balance would probably more easily be tipped in favour of granting it than in a case of remand before a first trial.

Thus, an appeal against acquittal would, it is suggested, in practice be undertaken only where there has been a clear miscarriage of justice and normally where the offence is a serious one. ...

ENGLAND AND WALES 

The English system permits a large range of appeals against both conviction and sentence. These are basically designed to ensure that the defendant’s trial was a fair one, and that there were no irregularities in its conduct, also that there is some consistency in the process. For the most part only the defendant (and not the prosecutor) may appeal. Provision is, however, made for the prosecutor to appeal on a point of law from the magistrates' court and he may bring an Attorney-General’s reference after an acquittal by the jury in cases where the prosecution takes the view that the judge has misrepresented the law.

In ordinary appeals by the accused, the Crown Court has the jurisdiction to increase

As the law stands at present, an accused can appeal, subject to certain procedural qualifications, against any aspect of bail, a conviction or sentence in a criminal case. The accused may also have proceedings in lower courts reviewed and, in the case of the High Court, have irregularities dealt with by way of appeal or special entry. The State, on the other hand, may appeal (also subject to similar procedural qualifications) against the grant of bail, an acquittal on a legal ground and also against an inadequate sentence. Experience has shown that these rights are used sparingly by the State. What the State does not have is any right to appeal against a finding of not guilty in relation to the facts of the case - the so-called appeal on the merits. 

The difference between questions of law and fact is often one of extreme difficulty to judge or apply and there are many reported cases dealing with the distinction. The same problem arose in the context of, for instance, tax appeals and because of the ever-present difficulty the distinction in tax cases has been abolished without any deleterious effect. In the present context there are conflicting policy considerations. The one is that an accused person has benefits and protections - some which are protected by the Constitution -which the prosecution, representing the community and the victims of crime, does not always enjoy. The administration of justice in South Africa (especially with regard to criminal procedure) has followed the English tradition and has always been characterised by liberality and respect for the individual.

On the other hand, there are the interests of society, whose members (not only the victims) also enjoy the rights contained in the Bill of Rights and are entitled to a just and fair decision in criminal cases. They have an interest in the conviction and sentencing of a person who is clearly guilty and who, because of incompetence or obvious errors in the trial court, go free. It cannot be doubted that a significant number of criminals go unpunished due to numerous flaws in the administration of the criminal justice system.

In considering the question whether a procedure such as the right to appeal should be changed, it is also imperative to consider whether the system, which denies the State a full right of appeal, satisfies present demands and whether changes may contribute towards achieving justice in the administration of the criminal law. Some regard must be given to cost and time and one must balance all relevant factors. Any proposed amendment should be principled, simplify the relevant procedures and improve the present system and should not be seen as an attempt at crisis management.

In the end the question essentially boils down to this: since the State has a right of appeal in connection with bail, sentence and questions of law, why should it not have a similar right in relation to factual matters? In other words, why should the right of appeal not be general?

Because that is the issue, the intention of the Commission is not to reconsider the rights of the convicted to appeal or the existing rights of appeal afforded to the State - all subjects dealt with in earlier reports and, to some extent, in recent legislation - but to focus on the limited issue at hand. The Commission’s brief is to simplify criminal procedure and in the course of the investigation it became clear that some changes, which are not directly related to the limited issue at hand, are also necessary. Some of these changes are cosmetic while others are aimed at simplifying criminal appeals generally. The Commission used this opportunity to also address these non contentious issues and its recommendations are included in the draft Bill. Only once in the past was the present problem considered by a South African commission, namely the so-called Botha Commission which drafted the Criminal Procedure Act of 1977. Because of objections against a similar proposal, it decided to make no recommendations. The views of the Botha Commission will be dealt with later in this report.