How cases are heard
The Court of Appeal sits either as the permanent court (three Judges, usually all permanent members of the Court) or as divisional court (three Judges, usually one permanent member and two High Court Judges with current criminal trial experience and warranted to sit as Court of Appeal Judges under s 48(2) of the Senior Courts Act 2016). Allocation of appeals between the permanent court and divisional courts is the responsibility of the President, assisted by list Judges appointed by the President to review appeals after filing. Criminal appeals are allocated to a divisional court unless the President directs otherwise. Counsel and parties are required to indicate when and why they consider an appeal should be heard by the permanent court.
In rare cases, the Court will sit as a full court of five permanent members. The procedure for the constitution of a full court may be found below.
The permanent court sits in session for three weeks at a time, almost always in Wellington. Permanent court sessions are followed by a two-week period in which divisional courts sit on circuit (in Auckland, Wellington, Christchurch and Dunedin).
The current sitting calendar for the Court of Appeal may be found here.
The Court of Appeal (Civil) Rules 2005 set out the procedural requirements for pursuing civil appeals. On 10 December 2018, the Rules were amended by Order in Council. The attached summary sets out the major changes. All changes took effect on 1 March 2019.
The Court of Appeal has jurisdiction to hear and determine appeals from any judgment, decree, or order of the High Court. Where the appeal to the Court of Appeal is itself an appeal from another court to the High Court, a further appeal to the Court of Appeal is available only if leave to appeal is given by the High Court or, where leave is refused by the High Court, by the Court of Appeal. Appeals on questions of law from the Employment Court can, with the leave of the Court of Appeal, be appealed to the Court of Appeal.
If an application for leave to appeal is required, the Rules set out the documents and information needed to assist the Court in coming to a decision. The Court makes its decision based on the documents filed plus any oral submissions made at the hearing of the application.
If the application for leave is granted or there is a right of appeal, the Rules set out the procedure to follow for the substantive hearing of the appeal. This could occur before the civil appeals division or before the full court. In either case, the appeal will be conducted by way of a rehearing.
The Court of Appeal (Criminal) Rules 2001 set out the procedural requirements for pursuing criminal appeals in the Court of Appeal. The Crimes Act 1961 also contains both substantive and procedural provisions relevant to criminal appeals to the Court of Appeal.
Any person convicted on indictment may appeal to the Court of Appeal (or, with the leave of the Supreme Court, to the Supreme Court) against the conviction, or the sentence passed on conviction (unless the sentence is one fixed by law) or both.
The Court of Appeal has jurisdiction to hear appeals against pre-trial rulings in criminal cases. There is a right of appeal with respect to High Court decisions granting or refusing bail or in respect of conditions of bail.
An appeal or application for leave to appeal must be dealt with by way of a hearing involving oral submissions unless the judge or court making the decision on the mode of hearing determines on the basis of the information contained in the notice of appeal, notice of application, or other written material provided by the parties that the appeal or application can be fairly dealt with on the papers.
If the appellant is in custody, he or she is not entitled to be present at a hearing involving oral submissions unless there is a legislative right to be present or the Court of Appeal grants leave. Most criminal appeals will be dealt with by the criminal appeals division of the Court of Appeal, constituting one Court of Appeal judge and two High Court judges.
Section 51(2) of the Senior Courts Act 2016 requires the President of the Court of Appeal to publish the procedure adopted by Judges of the Court to determine whether an appeal is of sufficient significance to warrant hearing by a full court of five Judges.
The following procedure was adopted by the Judges of the Court of Appeal on 28 March 2014:
1. The President will determine whether an appeal is of sufficient significance to warrant the consideration of a full court. The President will, where appropriate, consult with other permanent Judges. In the main, an appeal will be allocated to a full court only where:
(a) the establishment or revision of sentencing guidelines is proposed; or
(b) the appeal involves issues of evidence, procedure, or practice of general application, or some other issue which will be of major significance to other cases, particularly where there is no right to apply to the Supreme Court for leave to appeal against the Court’s decision.
2. In determining whether an appeal should be allocated to a full court, the President may take into account the following considerations:
(a) the forward planning programme and availability of Judges; and
(b) the efficient dispatch of the Court’s business.
3. That one or more of the parties seeks the reconsideration of an earlier judgments of the court is not, in itself, a reason for allocating the appeal to a full court.
4. A decision that an appeal be allocated to a full court may be reviewed by the President from time to time (for instance, for reasons associated with the availability of Judges) and the President may direct that an appeal which has been allocated to a full court be reallocated to a permanent court or a divisional court.
5. The permanent Judges will consult regularly to review the criteria, their implementation, and the general effect of the allocation to a full court on the overall workload of the court.
In addition to the above, and as required by section 50(1) of the Senior Courts Act 2016, the Court of Appeal must sit as a full court to hear and determine –
(a) a proceeding, case or question referred under section 47(4) for hearing and determination by a full court; and
(b) an appeal from a decision of the Court Martial Appeal Court under section 10 of the Court Martial Appeals Act 1953.