Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698829921823.pdf (New Zealand)
2005/70 Court of Appeal (Criminal) Amendment Rules 2005 Pursuant to section 51C of the Judicature Act 1908, section 409 of the Crimes Act 1961, section 73 of the Bail Act 2000, and section 107U of the Parole Act 2002, Her Excellency the Governor­General, acting on the advice and with the consent of the Executive Coun­ cil, and as far as the rules regulate the practice and procedure of the Court of Appeal in the exercise of its jurisdiction conferred by the Judicature Act 1908 and the Crimes Act 1961, with the concurrence of the Right Honourable the Chief Justice and at least 2 other mem­ bers of the Rules Committee (of whom at least I was a Judge of the High Court) makes the following rules.
Contents Title Commencement Interpretation Application of rules Form of notice of appeal and notice of application for leave to appeal Other applications may be included in notice of appeal or of application for leave to appeal Persons required or authorised to sign notices and other documents Form must be treated as application for extension of time if notice given out of time New rules 12A to 12C inserted Complaint against trial counsel 12A Fresh evidence 12B 12C Disparity of sentences Documents required for general appeals Documents required for other appeals Page 2 2 2 4 4 4 4 5 5 5 6 6 7 7 1 r 1 (1) (2) 2 3 (1) Court of Appeal (Criminal) Amendment Rules 2005 2005/70 Timing of submissions on merits Period allowed for making written submissions on merits Notiﬁcation of decisions New rule 36A inserted 36A Chief executive must notify victim about extended supervision order appeal New rules 45A and 45B inserted 45A Power to extend or shorten time appointed by rules or ﬁxed by order Correction of accidental slip or omission 45B New form inserted Schedule New form 8 added 8 8 9 9 9 10 10 10 11 11 Title These rules are the Court of Appeal (Criminal) Amendment Rules 2005.
In these rules, the Court of Appeal (Criminal) Rules 20011 are called “the principal rules”.

Commencement These rules come into force on 1 May 2005.
Interpretation Rule 3 of the principal rules is amended by inserting, after the deﬁnition of bail appeal, the following deﬁnition: “chief executive means the chief executive of the Department of Cor­ rections.” (2) Rule 3 of the principal rules is amended by inserting, after the deﬁnition of exhibit, the following deﬁnition: “extended supervision order appeal means an appeal under section 107R of the Parole Act 2002 against a decision or order made by a sentencing court under section 107I, section 107M, or section 107N of that Act.” 1 SR 2001/371 2 2005/70 Court of Appeal (Criminal) Amendment Rules 2005 r 3 (3) Rule 3 of the principal rules is amended by revoking the def­ inition of general appeal, and substituting the following deﬁn­ ition: “general appeal— “(a) means— “(i) an appeal under section 383(1) of the Act against con­ viction or sentence or both; or an appeal under section 384 of the Act against a ﬁnd­ ing of criminal contempt or a sentence for criminal con­ tempt or both; but “(ii) “(b) does not include an extended supervision order appeal.” (4) Rule 3 of the principal rules is amended by revoking the def­ initions of prosecutor and prosecutor appeal, and substituting the following deﬁnitions: “prosecutor means,— “(a) in the case of an extended supervision order appeal, the chief executive; or in the case of any other appeal or an application for leave to appeal, the Solicitor­General or a prosecutor “(b) “prosecutor appeal means an appeal or an application for leave to appeal, whether made under
 Part 8 of the Act or any other Act (except the Parole Act 2002).” (5) Rule 3 of the principal rules is amended by adding to the def­ inition of summary proceedings appeal, the words “; and in­ cludes an appeal under section 69(1)(p) of the Extradition Act 1999”.
Rule 3 of the principal rules is amended by adding the follow­ ing deﬁnitions: (6) “victim, in relation to an extended supervision order appeal, has the meaning given to it by section 4(1) of the Parole Act 2002 “working day means a day that is not— “(a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, “(b) (7) Labour Day, the Sovereign’s Birthday, or Waitangi Day; or a day in the period commencing on 25 December in one year and ending on 15 January in the next year.” Rule 3 of the principal rules is amended by adding, as sub­ clause (2), the following subclause: 3 r 4 “(2) 4 (1) “(f) (2) 5 Court of Appeal (Criminal) Amendment Rules 2005 2005/70 In any judgment, order, direction, or other document forming part of any proceeding, unless the context otherwise requires, working day has the meaning given by subclause (1).” Application of rules Rule 4(1) of the principal rules is amended by adding the word “; and” to paragraph (e) and also by adding the following para­ graph: extended supervision order appeals.” Rule 4(3) of the principal rules is amended by omitting the words “, or shorten or extend any appointed period,”.
Form of notice of appeal and notice of application for leave to appeal Rule 6 of the principal rules is amended by adding the follow­ ing subclause: “(7) An extended supervision order appeal must,— “(a) “(b) if made by the chief executive, be made in form 2 (which applies with all necessary modiﬁcations); or if made by the offender to whom the extended supervi­ sion order relates, be made in form 8.” 6 7 Other applications may be included in notice of appeal or of application for leave to appeal Rule 7 of the principal rules is amended by inserting, after the words “forms 1 to 6”, the expression “or 8”.
Persons required or authorised to sign notices and other documents Rule 8 of the principal rules is amended by revoking subclause (5), and substituting the following subclause: “(5) A notice or other document required to be signed by— “(a) “(b) the Solicitor­General may be signed on his or her behalf by Crown Counsel; or the chief executive may be signed on his or her behalf by the chief executive’s delegate.” 4 2005/70 Court of Appeal (Criminal) Amendment Rules 2005 r 9 8 9 Form must be treated as application for extension of time if notice given out of time Rule 12 of the principal rules is amended by inserting, after the words “forms 1 to 6”, the expression “or 8”.
New rules 12A to 12C inserted The principal rules are amended by inserting, after rule 12, the following rules: “12A Complaint against trial counsel “(1) If a ground of appeal is that there was a miscarriage of justice because of the conduct of the appellant’s counsel at the trial or sentencing, particulars of the conduct concerned must be given in— “(a) “(b) the notice of appeal; or a memorandum to be ﬁled and served by the appellant within 30 working days of ﬁling the notice of appeal.
“(2) The appellant must, within 30 working days of ﬁling notice of appeal,— “(a) provide to the prosecutor a written waiver of privilege addressed to the appellant’s counsel at the trial or sen­ tencing; and “(b) ﬁle and serve on the prosecutor any afﬁdavits that relate to the ground of appeal.
“(3) If the appellant considers that a waiver of privilege is inappro­ priate, the appellant may apply for an exemption from sub­ clause (2)(a) and the Court, if it considers that an exemption is appropriate, may grant it.

“(4) The prosecutor must ﬁle and serve any afﬁdavit in reply within 15 working days after service of the appellant’s afﬁdavit.
“(5) A party who wishes to cross­examine a deponent who has sworn an afﬁdavit on behalf of the other party must, within 15 working days of service of the afﬁdavit, ﬁle and serve on the other party a notice of cross­examination specifying the deponent the party wishes to cross­examine.
“(6) A party on whom a notice is served under subclause (5) must— immediately advise the deponent that he or she is re­ quired for cross­examination; and “(a) 5 r 9 Court of Appeal (Criminal) Amendment Rules 2005 2005/70 “(b) “(c) advise the deponent of the hearing date of the appeal as soon as it is known; and ensure that the deponent is present at the hearing for cross­examination.
“12B Fresh evidence “(1) If a ground of appeal is that there was a miscarriage of justice because further evidence has become available since the trial, particulars of the further evidence must be set out in— “(a) “(b) the notice of appeal; or a memorandum to be ﬁled and served by the appellant within 30 working days of ﬁling the notice of appeal.

“(2) The appellant must, within 30 working days of ﬁling the notice of appeal, ﬁle and serve on the prosecutor any afﬁdavits that relate to the ground of appeal.
“(3) The afﬁdavits must— “(a) “(b) set out the further evidence; and explain why the further evidence was not available at the trial and why it could not, with reasonable diligence, have been called.

“(4) The prosecutor must ﬁle and serve any afﬁdavit in reply within 15 working days after service of the appellant’s afﬁdavit.
“(5) A party who wishes to cross­examine a deponent who has sworn an afﬁdavit on behalf of the other party must, within 15 working days of service of the afﬁdavit, ﬁle and serve on the other party a notice of cross­examination specifying the deponent the party wishes to cross­examine.
“(a) “(6) A party on whom a notice is served under subclause (5) must— immediately advise the deponent that he or she is re­ quired for cross­examination; and advise the deponent of the hearing date of the appeal as soon as it is known; and ensure that the deponent is present at the hearing for cross­examination.
“(b) “(c) “12C Disparity of sentences If a ground of appeal is that the sentence imposed on the appel­ lant was not appropriate because of disparity with a sentence 6 2005/70 Court of Appeal (Criminal) Amendment Rules 2005 r 11 imposed on a co­offender, that ground of appeal must be stated in the notice of appeal.” 10 “(2) Documents required for general appeals Rule 13 of the principal rules is amended by revoking sub­ clause (2), and substituting the following subclauses: If a notice of appeal states in accordance with rule 12C that a ground of appeal is disparity of sentence, the Registrar must obtain, for the use of the Court, documents relevant to the sentence imposed on the appellant’s co­offender, including— the statement of facts or evidence on which the sentence “(a) imposed on the appellant’s co­offender was based: information submitted to the Judge under section 21 of the Victims’ Rights Act 2002 for the sentencing of the appellant’s co­offender: the pre­sentence report relating to the appellant’s co­of­ fender (including the co­offender’s record of convic­ tions): the Judge’s sentencing remarks with respect to the ap­ pellant’s co­offender.
“(b) “(d) “(c) “(3) The Registrar must include the material speciﬁed in subclause (4) in the preliminary case on appeal or, if the preliminary case on appeal has been prepared, in a supplementary case on appeal.

“(4) The material is— “(a) material ﬁled under rule 12A or 12B; or “(b) material obtained under subclause (2)(a), (c), and (d) (but not material obtained under subclause (2)(b)).
“(5) The preliminary case on appeal, together with any supplemen­ tary case on appeal, constitutes the ﬁnal case on appeal for a general appeal.

“(6) Counsel for the parties must ensure that all material relevant to the appeal has been included in the ﬁnal case on appeal.” 11 Documents required for other appeals Rule 14 of the principal rules is amended by omitting the words “forms 1, 2, 4, 5, or 6”, and substituting the words “forms 1, 2, 4, 5, 6, or 8”.
7 r 12 12 (1) (2) (3) Court of Appeal (Criminal) Amendment Rules 2005 2005/70 Timing of submissions on merits Rule 27(3) of the principal rules is amended by omitting the words “14 days”, and substituting the words “15 working days”.

Rule 27(4) of the principal rules is amended by omitting the words “7 days”, and substituting the words “10 working days”.
Rule 27 of the principal rules is amended by inserting, after subclause (4), the following subclauses: “(4A) In the case of an extended supervision order appeal to which this rule applies, a victim who wishes to make written submis­ sions to the Court must provide them to the Court no less than 15 working days before the hearing date.
“(4B) If the victim also wishes to appear and make oral submissions at the hearing, he or she must, in accordance with subclause (4C), apply for the Court’s leave to appear and make oral sub­ missions.

“(4C) The victim must apply for the Court’s leave in a separate letter that— “(a) “(b) is provided to the Court at the same time as the written submissions referred to in subclause (4A); and sets out the reasons why the Court should give leave.
“(4D) The Registrar must serve on the prosecutor and the offender to whom the appeal relates a copy of— “(a) the written submissions referred to in subclause (4A); and the letter referred to in subclause (4C).
“(b) “(4E) Subclause (4D) is subject to section 107W of the Parole Act 2002 and, accordingly, the Registrar must delete any informa­ tion that discloses the current address or contact details of the victim from the copy of any documents to be served on the of­ fender under that subclause.” 13 (1) Period allowed for making written submissions on merits Rule 29 of the principal rules is amended by revoking sub­ clause (4), and substituting the following subclause: “(4) The Registrar must appoint a period of no less than 20 working days within which submissions may be made— 8 2005/70 Court of Appeal (Criminal) Amendment Rules 2005 r 15 “(a) “(b) by the appellant in support of the appeal (including fur­ ther written submissions about the Court’s decision on the mode of hearing); and in the case of an extended supervision order appeal, by the victim.” (2) Rule 29 of the principal rules is amended by revoking sub­ clause (6), and substituting the following subclauses: “(6) The Registrar must send to the respondent a copy of all written submissions received by the Court from the appellant and, if applicable, from the victim, within the appointed period, and the respondent may make written submissions within— “(a) 10 working days if the respondent is the Solicitor­Gen­ eral or the chief executive; or “(b) 20 working days in the case of any other respondent.
“(6A) Subclause (6) is subject to section 107W of the Parole Act 2002 in so far as it relates to written submissions from the vic­ tim and, accordingly, the Registrar must delete any informa­ tion that discloses the current address or contact details of the victim from the copy of those submissions to be served on the respondent under that subclause if the respondent is the of­ fender.” Rule 29(7)(a) of the principal rules is amended by omitting the words “14 days”, and substituting the words “10 working days”.
Rule 29 of the principal rules is amended by revoking sub­ clause (9).

(3) (4) 14 15 Notiﬁcation of decisions Rule 34(3) of the principal rules is amended by omitting the words “7 days”, and substituting the words “5 working days”.
New rule 36A inserted The principal rules are amended by inserting, after rule 36, the following rule: “36A Chief executive must notify victim about extended supervision order appeal The chief executive must, in relation to an extended supervi­ sion order appeal,— 9 r 16 Court of Appeal (Criminal) Amendment Rules 2005 2005/70 “(a) notify every victim about any decision of the Court on the appeal, including any decision on an application for leave to appear and make oral submissions made by the victim under rule 27(4B); and “(b) notify every victim about when any submissions to the “(c) “(d) Court on the appeal must be made; and notify every victim about the time and place ﬁxed for the hearing of the appeal if the victim’s application for leave to appear and make oral submissions under rule 27(4B) is granted; and ensure that copies of any submissions ﬁled by or pro­ vided to the chief executive are forwarded to every vic­ tim as soon as practicable.” 16 New rules 45A and 45B inserted The principal rules are amended by inserting, after rule 45, the following rules: “45A Power to extend or shorten time appointed by rules or ﬁxed by order “(1) The Court may extend or shorten the time appointed by these rules, or ﬁxed by any order, for doing any act or taking any proceeding or any step in a proceeding on any terms that the Court thinks just.
“(2) The Court may exercise a power conferred by subclause (1)— “(a) whether on application by a party or on the Court’s own initiative; and “(b) whether for reasons or urgency or for any other reason; “(c) and in the case of an extension of the time referred to in that subclause, whether before or after that time has expired.
“45B Correction of accidental slip or omission “(1) This rule applies if— “(a) any judgment or order or the reasons for any judgment or order contain a clerical mistake or an error arising from any accidental slip or omission (whether the mis­ take, error, slip, or omission was made by an ofﬁcer of the Court or not); or 10 2005/70 Court of Appeal (Criminal) Amendment Rules 2005 Schedule “(b) any judgment or order is so drawn up as not to express what was actually decided and intended.
“(2) The Court or the Registrar may correct the judgment or order or the reasons for the judgment or order on— “(a) “(b) the Court’s or Registrar’s own initiative; or an interlocutory application made for that purpose.
“(3) The Registrar may correct the judgment or order or the reasons for the judgment or order in accordance with subclause (2) only if the judgment or order in question was made by the Registrar.” 17 New form inserted The Schedule of the principal rules is amended by adding the form 8 set out in the Schedule.
Schedule New form 8 added “Form 8 “Notice of appeal by offender relating to extended supervision order” r 17 r 6(7) “ 11 Schedule Court of Appeal (Criminal) Amendment Rules 2005 2005/70 Form 8—continued 12 2005/70 Court of Appeal (Criminal) Amendment Rules 2005 Explanatory note Form 8—continued Rebecca Kitteridge, Acting for Clerk of the Executive Council.

Explanatory note This note is not part of the rules, but is intended to indicate their general effect.
13 Explanatory note Court of Appeal (Criminal) Amendment Rules 2005 2005/70 •• •• •• These rules, which come into force on 1 May 2005, amend the Court of Appeal (Criminal) Rules 2001 ( “the principal rules”).
In general terms, the amendments— •• insert several new provisions and a new form into the princi­ pal rules relating to appeals in respect of extended supervision orders under the Parole Act 2002 (which may be made against offenders who have been convicted of certain sexual offences and who pose a real and ongoing risk of committing sexual offences against children or young persons): incorporate into the principal rules the procedures for appeals brought on the grounds of the conduct of trial counsel, fresh evidence, and disparity of sentences that are currently dealt with in Practice Notes issued by the Court: relocate the provision allowing the Court to extend or shorten any appointed period into a separate rule, as is the case in the Court of Appeal (Civil) Rules 2005: insert a new rule to correct clerical mistakes or errors arising from an accidental slip or omission in any judgment or order or the reasons for any judgment or order: make a number of other technical changes.
•• Rule 3 inserts a number of new deﬁnitions into the principal rules that are needed for the purposes of the new rules governing extended supervision order appeals under the Parole Act 2002 (see new rules 4(1)(f), 6(7), 8(5), 27(4A) to (4E), 29(4), (6), and (6A), 36A, and new form 8).
An extended supervision order appeal is deﬁned to mean an appeal under section 107R of the Parole Act 2002 against a deci­ sion or order made by a sentencing court under section 107I (making of an extended supervision order), section 107M (cancellation of an extended supervision order), or section 107N (extension of a short extended supervision order) of that Act.
Rule 3 also— •• amends several existing deﬁnitions in the principal rules in connection with extended supervision order appeals; and inserts a deﬁnition of working day (which is taken from the High Court Rules and is the same as the deﬁnition of that term in the Court of Appeal (Civil) Rules 2005).

•• Rule 4 provides that the principal rules apply to extended supervi­ sion order appeals.
Rule 4 also makes an amendment to rule 4(3) of 14 2005/70 Court of Appeal (Criminal) Amendment Rules 2005 Explanatory note the principal rules that is consequential on the amendment made by new rule 45A concerning the general power to extend or shorten ap­ pointed times.

Rule 5 provides that an extended supervision order appeal must, if made by the chief executive of the Department of Corrections (chief executive), be made in form 2 or, if made by the offender to whom the order relates, be made in form 8.
The Schedule of these rules sets out new form 8, which is substantially the same as form 3 (notice of appeal by person convicted) of the principal rules.

Rules 6 and 8 make minor drafting amendments that are consequen­ tial on the amendments made to the principal rules in relation to ex­ tended supervision order appeals.
Rule 7 amends rule 8(5) of the principal rules to provide that a notice or other document required to be signed by the chief executive may be signed on his or her behalf by the chief executive’s delegate.

Rule 9 inserts new rules 12A to 12C into the principal rules.

New rule 12A deals with the procedure for appeals brought on the ground that there was a miscarriage of justice because of the conduct of the appellant’s counsel at the trial or sentencing.
New rule 12B deals with the procedure for appeals brought on the ground that there was a miscarriage of justice because further evidence has become available since the trial.

New rule 12C deals with the procedure for appeals brought on the ground that the sentence imposed on the appellant was not appropriate because of the disparity between that sentence and the sentence imposed on a co­offender.
The procedures set out in new rules 12A to 12C are currently provided for in Practice Notes issued by the Court, which are to be revoked.

Rule 10 makes an amendment to rule 13 (documents required for general appeals) of the principal rules that is related to new rule 12C.
The amendment provides that, in an appeal brought on the ground of disparity of sentence, the Registrar must obtain, for the use of the Court, certain documents relevant to the sentence imposed on the appellant’s co­offender (including, for example, the pre­sentence report on the co­offender).

Rule 11 makes a minor drafting amendment that is consequential on the amendments made to the principal rules in relation to extended supervision order appeals.
15 Explanatory note Court of Appeal (Criminal) Amendment Rules 2005 2005/70 Rule 12 amends rule 27 (timing of submissions on merits in oral ap­ peals) of the principal rules in 2 respects.

First, it replaces the time speciﬁed in rule 27(3) and (4) within which, respectively, the ap­ pellant and the respondent must provide written submissions to the Court.
Under the amendment, the appellant must now provide his or her written submissions no less than 15 working days before the hearing date, instead of 14 days before that date.

The respondent, on the other hand, must now provide his or her submissions no less than 10 working days before the hearing date, instead of 7 days before that date.
Secondly, rule 12 inserts new provisions into rule 27 of the principal rules dealing with the timing of submissions from a victim who wishes to make written submissions to the Court on an extended supervision order appeal or who wishes to appear and make oral sub­ missions at the hearing of that appeal.

Rule 13 amends rule 29 (period allowed for making written submis­ sions on merits in appeals on papers) of the principal rules in several respects.
The principal amendments require the Registrar to— •• appoint a period within which the appellant and, in the case of an extended supervision order appeal, the victim may make written submissions to the Court; and send to the respondent all submissions received by the Court from the appellant and, if applicable, from the victim within the appointed period.
•• Rule 13 also makes a consequential amendment to rule 29 of the prin­ cipal rules by omitting a provision that is no longer needed because of the addition of a general power to extend or shorten appointed times under new rule 45A.

Rule 14 amends rule 34(3) (notiﬁcation of decisions) of the principal rules.
Under the amendment, an application for review of a decision of the Court in cases where a party has the right to have that decision reviewed must now be ﬁled within 5 working days after receipt of notiﬁcation, instead of 7 days after that receipt.

Rule 15 inserts new rule 36A into the principal rules.

New rule 36A imposes certain duties on the chief executive to notify victims about extended supervision order appeals.
New rule 36A is consis­ tent with the duty of the chief executive under section 107H(4) of the Parole Act 2002 to notify every victim of the offender concerned 16 2005/70 Court of Appeal (Criminal) Amendment Rules 2005 when any hearing of an appeal against an extended supervision order is to be held.

Rule 16 inserts new rules 45A and 45B into the principal rules.
New rule 45A allows the Court to extend or shorten the time appointed by the principal rules, or ﬁxed by an order, for doing any act or taking any proceeding or any step in a proceeding on any terms that the Court thinks just.
This power, which replaces the provision in rule 4(3) of the principal rules concerning the extension or shortening of appointed periods, is expressed in the same terms as a corresponding power in respect of civil proceedings that is conferred on the Court by the Court of Appeal (Civil) Rules 2005.
New rule 45B allows the Court or, in certain cases, the Registrar to correct any clerical mistakes or any errors arising from an accidental slip or omission in any judgment or order or the reasons for any judgment or order.

This power is also expressed in the same terms as a corresponding power in respect of civil proceedings that is conferred on the Court by the Court of Appeal (Civil) Rules 2005.

Rule 17 inserts a new form 8 into the principal rules.
New form 8 re­ lates to the notice of appeal by an offender in respect of an extended supervision order.

Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notiﬁcation in Gazette: 24 March 2005.

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