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Report No. 35

Appendix VI

Position Regarding Appeals from Death Sentences in Certain Countries

(i) Australia

(ii) U.S.A.

(iii) England

(iv) New Zealand

(v) Canada.

Appeals

Australian Capital Territory and Northern Territory1

(i) The same position obtains with regard to sentences of death as obtains with regard to other sentences: there is no appeal as of right. A sentence of death can be pronounced only by the Supreme Court of the respective Territories, and the rights of appeal are set out in section 52 of the Australian Capital Territory Supreme Court Act, 1933-1959, and section 47 of the Northern Territory Supreme Court Act, 1961, respectively. References to the High Court in those sections are to the High Court of Australia.

(ii) The High Court of Australia hears the first appeal.

(iii) There is an appeal to the Privy Council, by special leave-under the Constitution, section 74. As to the grounds of appeal, see Bentwich, "Privy Council Practice" (3rd Edn.), p. 137 et seq.

1. Based on information obtained through the Australian High Commission, New Delhi.

New South Wales1 (Australia)

By virtue of the provisions of the Criminal Appeal Act, 1912, as amended, a person convicted on indictment may appeal, to the Court of Criminal Appeal, which is constituted by three or more Judges of the Supreme Court of New South Wales. The appeal may be:-

(a) against his conviction on any ground which involves a question of law alone; and

(b) with the leave of the court, or upon the certificate of the Judge of the Court of trial that it is a fit case for appeal, against his conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal; and

(c) with the leave of the Court, against the sentence passed on his conviction.

Second Appeal.-The Commonwealth Judiciary Act, 1903, as amended, provides a right of appeal in criminal matters to the High Court of Australia. Such an appeal from the Court of Criminal Appeal is, in general, by special leave, which is made on notice to the court, where an indictable offence is involved.

Under Orders-in-Council of 2nd April, 1909, and 2nd May, 1925, appeals lie to the Privy Council from the High Court in criminal matters, only by special leave of the Privy Council.

1. Based on information obtained through the Australian High Commission, New Delhi.

South Australia1

Section 11 of the Criminal Law Consolidation Act provides that any person who is convicted of murder shall suffer death as a felon. On conviction for murder pronouncement of sentence of death is automatic. It is the only sentence which can by law be imposed. Whether the sentence is carried into effect or commuted is a matter for the Governor of the State, with the advice and consent of the Executive Council, to decide.

There is no appeal to any Court against sentence of death as such, although of course an appeal against conviction lies to the Full Court of the Supreme Court, sitting as a Court of Criminal Appeal.

An appeal on matters of law lies as of right; an appeal on a matter of fact or mixed fact and law lies only with the leave of the Full Court.

Further appeals can be made to the High Court of Australia and to the Privy Council, but only with the leave of those tribunals.

1. Based on information obtained through the Australian High Commission, New Delhi.

Tasmania1 (Australia)

Under the provisions of the Tasmanian Criminal Code Act, 1924, sentence of death is restricted to two crimes viz., Treason (section 56) and Murder (section 158) and in both cases sentence of death is mandatory.

Regarding appeals, see section 401 of the Criminal Code Act, 1924. Section 401(1) states "A person convicted before a Court of trial may appeal to the Court of Criminal Appeal:-

(a)...............

(b)...............

(c) by leave of the Court of Criminal Appeal, against the sentence passed on his conviction unless the sentence is one fixed by law."

As the sentence of death is one which is fixed by law, the position is that a person so sentenced has no right of appeal against the sentence as such. But an appeal by a person under sentence of death against his conviction is regulated by numerous statutory provisions.

1. Based on information obtained through the Australian High Commission, New Delhi.

Victoria1 (Australia)

(i) Death sentence is not appealable as such.

(ii) The Full Court of the Supreme Court of Victoria hears the first appeal.

(iii) Appeals from (ii) may be made to the High Court of Australia or to the Privy Council, or in succession to the High Court of Australia and then to the Privy Council.

Point (i) may be elaborated thus: There is an appeal as of right against conviction on any ground of appeal which involves a question of law alone, otherwise a certificate of leave is required. See section 567 of the Crimes Act, 1958 (cited below).

In elaboration of Point (iii), special leave of the High Court is necessary on appeals to the High Court. The grounds are not prescribed by statute, so it is a matter of discretion for the High Court. As to appeals to the Privy Council, the appeal is only by leave. Such leave may be granted by the Court giving the judgment appealed from or by the Privy Council. The grounds on which leave will be given are not prescribed by statute, but depend on the practice of the Court or the Privy Council, as the case may be.

Section 567 of the Crimes Act, 1958 (No. 6231), reads as follows:-

"567. A person convicted on indictment may appeal under this Part to the Full Court-

(a) against his conviction on any ground of appeal which involves.- question of law alone: Provided that the Full Court in any such case may, if it thinks fit, decide that the procedure with relation to Crown cases reserved under Part III of this Act should be followed, and require a case to be stated accordingly under that Part in the same manner as if a question of law had been reserved and thereupon the provisions of the said Part shall with the necessary modifications apply accordingly;

(b) upon the certificate of the judge of the Supreme Court or chairman of general sessions before whom he was tried, that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of mixed law and fact;

(c) with the leave of the Full Court, upon any such ground as is mentioned in paragraph (b), or any other ground which appears to the Full Court to be a sufficient ground of appeal; and

(d) with the leave of the Full Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.

1. Based on information obtained through the Australian High Commission, New Delhi.

Western Australia1

(i) Section 688 of the Criminal Code provides in paragraph (c) "A person convicted on indictment may appeal to the Court (a) with the leave of the Court against the sentence passed on his conviction." The right in the case of sentence of death is not of great weight, as the sentence of death is mandatory and cannot be varied by a Court. Therefore, if a man is convicted of wilful murder or treason, the sentence of death must be passed, and unless commuted by the Executive Council, must be carried out.

(ii) The Full Court of the Supreme Court of Western Australia hears the first appeal.

(iii) There are no further appeals possible, although where the High Court grants special leave to appeal and substitutes a conviction for a lesser offence if it allows the appeal, then it substitutes the appropriate penalty, which in all cases (except wilful murder and treason) does not involve sentence of death.

1. Based on information obtained through the Australian High Commission, New Delhi.

Queensland1

The death penalty was abolished in Queensland by the Criminal Code Amendment Act of 1922, which was assented to on July 31, 1922.

1. Based on information obtained through the Australian High Commission, New Delhi.

U.S.A.1

The information is limited to pertinent Federal statutory procedure, including the availability of review in a Federal Court of a death sentence imposed in a State Court.

(i) Whether sentences of death are appealable as of right to the highest appellate court?

Sentences of death imposed in a Federal District Court are not appealable as of right to the highest appellate court, the Supreme Court of the United States. Review of a death sentence in the Supreme Court is limited to those cases wherein the Supreme Court in the exercise of its discretion grants certiorari from the intermediate Federal Court, the Court of Appeals2.

Former section 681 of Title 18 allowed an accused the right to direct appeal from a Federal District Court to the Supreme Court in cases involving conviction of a capital offence. This section was repealed by those sections of Title 28 which completely reorganised distribution of appellate jurisdiction between the Supreme Court and the Circuit Courts of Appeals3. Now a defendant sentenced to death in a Federal District Court must appeal to a Circuit Court of Appeals.

(ii) Which court bears the first appeal?

As indicated, the first appeal in a case where the death sentence has been imposed in a Federal District Court would be to a Circuit Court of Appeals. The Courts of Appeals have jurisdiction of appeals from all final decisions4 of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands5. A defendant is entitled to a full review of his cases in a Circuit Court of Appeals.

The Court reorganization referred to in (i), supra which eliminated direct appeal to the Supreme Court in capital cases infringed no substantial right of a defendant sentenced to death to a full review of his case, for he may take an appeal to a Circuit Court of Appeals as a matter of right. It was simply a situation where the channel of appeal was changed.

(iii) Are there any further appeal or appeals. If so, to which court and on what grounds?

A defendant sentenced to death in a Federal court may attempt to have his case further reviewed in the Supreme Court of the United States by writ of certiorari. Cases in the Courts of Appeals may be reviewed by the Supreme Court by writ of certiorari granted upon the petition of any party to any criminal case, before or after rendition of judgment or decree6. Supreme Court rule 19 sets forth the guidelines for the Court to follow in deciding whether to review a case on certiorari. They are as follows:

1. Based on information supplied by the Department of Justice, U.S.A through the American Embassy, New Delhi.

2. See discussion (iii) infra.

3. See United States v. Stephen, 49 F Supp 897 (D. Mich., 1943), appeal denied, 319 US 423 (1943).

4. Final decision is the sentence. Berman v. United States, 302 US 211 (1937); Northern v. United States, 300 F. 2d 431 (C.A. 6, 1962).

5. 28 USC 1291.

6. 28 USC 1254.







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