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Criminal Local Court

This comprehensive step-by-step guide covers all aspects of criminal practice and procedure for summary and indictable offences in the Local Court, with supplementary guides specific to traffic offences and Apprehended Violence Orders. 


The guides provide easy to understand coverage of the procedural aspects of criminal law matters, from arrest and charge through to hearing and/or sentencing, including avenues of appeal and costs applications. Written by experienced practitioners, these guides provide practical tips for lawyers new to this area of work and a detailed overview to assist all practitioners, especially those supervising younger lawyers.


Recent updates to this publication can be viewed on Obiter - our blog.



MATTER PLAN
  • “ Contents ”
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  • “ New South Wales A full commentary on the law and practice as it currently applies to acting for the defendant in criminal proceedings in the Local Court. ”
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      • “ New South Wales The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’. ”
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        • “ This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences. A subpoena can also be both a subpoena to ... ”
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        • “ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
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        • “ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, ... ”
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        • “ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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        • “ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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          • “ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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          • “ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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          • “ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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          • “ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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          • “ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ... ”
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          • “ In criminal cases s 225 Criminal Procedure Act 1986 provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe something, ... ”
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          • “ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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          • “ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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          • “ The leading civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] NSWSC ... ”
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          • “ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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          • “ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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          • “ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek ... ”
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          • “ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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          • “ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ... ”
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          • “ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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          • “ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ... ”
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        • “ If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ... ”
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        • “ A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ... ”
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        • “ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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        • “ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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        • “ When a subpoena is issued the documents are produced to the court, not to you. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court proceedings, will respond to a subpoena ... ”
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        • “ It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ... ”
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    • “ Local Court NSW Practice Direction Crim 1 ”
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    • “ Local Court Civil (NSW) Traffic Offences – Local Court (NSW) ”
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  • “ Commencement of proceedings All criminal charges, regardless of their seriousness, commence in the Local Court. ”
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    • “ There have been substantial and very important changes to bail recently. The Bail Act 2013 came into force on 20 May 2014. It replaced the Bail Act 1978 (the old Act) and profoundly changed the approach to bail in NSW. The old Act was based on there being a general presumption in favour of bail ... ”
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    • “ Bail is to be determined as soon as practicable after the charge is laid: Bail Act 2013 - s 44 Bail decision to be made after person is charged. This is done by a police officer of, or above, the rank of sergeant and present at the police station, or the police officer for the time being in charge ... ”
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    • “ An accused only gets one chance to make a bail application, so think very carefully about whether it is best done at the first appearance or better left for a while so that relevant information in support of the application can be gathered and potential bail guarantors contacted, et cetera. It is ... ”
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    • “ You need full instructions on a bail application. You need to know and be able to answer questions from the bench as to your client’s residential address and domestic arrangements, his work details, income, assets, community ties, criminal history, reason for any past failures to appear, any ... ”
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    • “ Arrange for your client to be brought up from the cells or to participate by audio visual link. This can often be arranged in advance with the court officer or sheriff's officer, depending on which court you are at. When your client arrives, mention the matter and indicate that you have a bail ... ”
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    • “ If the client is in custody having been refused bail then he will appear by way of audio visual link (AVL) from custody in all future interlocutory matters unless it is in the interests of justice that he appear in person and the court so directs: see s 5BB Evidence (Audio and Audio Visual Links) ... ”
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    • “ If bail is refused, your client will either leave the AVL room (and you will not generally be able to speak to them again until you go out to the jail and see them) or they will be taken from the court into custody in the cells below, or at the nearby police station. Your job is not over until you ... ”
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    • “ You are now at the stage where you have either seen your client at the police station or your client has come in to see you after having been charged with an offence. He should have with him a copy of the court attendance notices with respect to each charge and the ‘fact sheet’. The ‘fact sheet’ ... ”
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    • “ In NSW criminal law (as distinct from Federal criminal law) the vast majority of offences have two basic elements, that is: The guilty act, called the actus reus; and ”
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    • “ Strict liability relates to an offence where the prosecution does not have to prove any mens rea elements. However, there is still an available defence of honest and reasonable mistake of fact. That is, that the person was honestly mistaken as to certain facts existing but had a reasonable belief ... ”
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    • “ Absolute liability offences are those where the Crown merely has to prove the actus reus and there is no defence of reasonable mistake of fact. An example of this is the parking ticket. All the prosecution has to prove to succeed on a charge with respect to a parking ticket is that the client is ... ”
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    • “ For charge negotiations at court on the first return date, see Going to Court below. There are a number of reasons to negotiate with the prosecution on your client’s behalf. Where there is more than one charge, you may have instructions to plead guilty to one charge if others are dropped. If a ... ”
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    • “ Where an offender is before the court for sentencing, the court may take into account further offences that the offender has been charged with but not convicted, being offences which the offender ‘wants the court to take into account when dealing with the offender for the principal offence’: s 32 ... ”
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    • “ If you have discovered an error with the charge, or a technical flaw with the police case, or you believe that there are otherwise good grounds, given your client’s particular circumstances and instructions, to request that the prosecution withdraw the charge, or you wish to negotiate the charge ... ”
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    • “ When making representations the following should be included: The full name of the defendant ”
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      • “ Most representations are rejected. There is no requirement for the prosecutors to tell you why your representations fail, but if you ask they will very often tell you. It may be you aimed too high in which case further negotiation may fix it. There are times where it isn’t possible to make ... ”
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    • “ At the first return date you will always get a short adjournment, of up to about three weeks, if required. But make sure your client has not adjourned the matter three times already before they came to see you! You should not hesitate to seek an adjournment if you need time to get further ... ”
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    • “ Where possible write to the prosecution as discussed above for charge negotiations. However, if your client wants the matter completed on the first occasion and the amendment you want is just something minor in the way the facts are written, for example, then try to talk to the prosecutor on the ... ”
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    • “ By the second return date you should have confirmed your retainer and obtained necessary instructions. If there are issues with the charge or the facts, you should have contacted the prosecution about it and/or be ready to discuss the matter with the prosecutor before court. If the matter is a ... ”
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    • “ Includes an indictable matter where there is an absence of an election. An early plea of guilty is a very important mitigating factor on a criminal charge. Section 22 of the Crimes (Sentencing Procedure) Act 1999 provides that when passing sentence the court must take into account the fact that ... ”
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    • “ In many summary matters you need to be prepared to conduct a plea at the same time as the plea of guilty is given. It is rare in the Local Court that oral evidence is given on a plea. The practice is that the vast majority of pleas are conducted from the bar table with the legal representative ... ”
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    • “ You should advise your client about obtaining character references. References must be specific to the offence. You should hand (or send) a number of copies of this information sheet to your client to give to their referees. For example, if you wish to rely upon prior good character under section ... ”
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    • “ A willingness to make recompense to the victim of an offence is an indication of your client’s contrition and remorse. You should address this issue with your client before the sentence hearing. In the event of the offence having caused some injury, loss or damage you should ensure that the issue ... ”
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    • “ You should consider, prior to going to court, whether the magistrate is likely to require a pre-sentence report. For repeat offenders, especially on serious offences such as repeated violent assaults or High Range PCA and/or Drive While Disqualified offences, or contravene an AVO, it is usual for ... ”
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    • “ It is important when conducting a plea before the Local Court to be concise. Most courts are very busy, especially on list days and it is therefore important not to waffle or waste time, as it will only irritate the magistrate and an irritated magistrate isn't necessarily going to be converted to ... ”
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    • “ The procedure in the conduct of a plea is normally as follows: You arrive at court and check the list to confirm your client's matter is there and to find out the name of the magistrate; ”
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    • “ Includes an indictable matter in the absence of an election. If instructions and/or the police facts tend to reveal the existence of a defence for your client, you will first need to determine whether the offence is summary or indictable (see above). Summary offences are dealt with to finality by ... ”
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    • “ By this stage you should already have analysed the charge (see above) and identified your client’s defence. You should obtain a full proof of evidence (a statement) from the client in regard to what evidence he or she proposes to give about the matter. This document is not for the court or ... ”
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    • “ It is always a good idea to speak to the prosecutor before the hearing. You can phone them from about 8.30am, or see them just before court. You want to know if all of their witnesses are available and if they are ready to proceed. There may be some last minute charge negotiation possible. You ... ”
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    • “ A ‘no case to answer’ submission at the close of the prosecution case is a question of law. An example where it may arise is where the prosecutor has not adduced any evidence about one of the elements of the offence. When the magistrate is considering the question of whether there is a ‘no case ... ”
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    • “ It is possible for a magistrate to give themself a Prasad direction. The Prasad direction takes its name from R v Prasad (1979) 2 A Crim R 45. A Prasad direction in a jury trial is a direction by the trial judge to the jury informing it of its power to bring in a verdict of not guilty at any ... ”
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    • “ This submission arises from the case of May v O’Sullivan [1955] HCA 38. The case itself dealt with the question of the onus of proof. It is authority for the proposition that the onus is on the prosecution from first to last to establish guilt beyond reasonable doubt. It is also authority for the ... ”
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    • “ At the outset it should be said that costs orders against the prosecution are hard to get. However, they are more likely if some preparation towards them has been made – such as representations made on a specific charge or part of the evidence which has been rejected and then you have succeeded on ... ”
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    • “ As noted above, if the offence is strictly indictable, then it will proceed in the District Court and will be transferred there (and is therefore outside of the scope of this guide). Also as noted above, a Table 1 offence can be dealt with on indictment (i.e. in the District Court) if either the ... ”
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    • “ Indictable matters are to be dealt with summarily unless an election to have the matter dealt with on indictment is made. If an indictable matter is to be dealt with as a summary matter as a result of the absence of an election then it will be dealt with in the same manner as described in: ”
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    • “ Only if an application is made pursuant to s 91 Witness may be directed to attend of the Criminal Procedure Act 1986 can any police witness be cross-examined at committal. This application can be made by the magistrate on his own motion (which would be extremely unusual) on the application of the ... ”
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    • “ The matter is mentioned by you or the DPP and it is indicated that the matter is ready to proceed. The DPP tells the magistrate the charges on which they seek the accused be committed for trial. ”
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    • “ The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Crimes (High Risk Offenders) Amendment Act 2017 and the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 are awaiting proclamation, but are expected to commence in May 2018. The cumulative effect of ... ”
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    • “ An important issue relevant to sentence is the client’s prospects of rehabilitation. If there are medical issues relevant to the client’s offending behaviour, obtain a report from the client’s GP and any attending specialist (subject, of course, to the client’s ability to pay for such reports, ... ”
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    • “ Section 10 Section 10 of the Crimes (Sentencing Procedure) Act allows the court to find the offence proven but not proceed to a conviction. The court then disposes one of the following ways, by: ”
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    • “ Intensive correction order: s 7 A court that has sentenced an offender to imprisonment for not more than two years may make an intensive correction order directing that the sentence be served by way of intensive correction in the community. ”
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    • “ In the event that a client presents with a developmental disability, a mental illness or suffering from a mental condition for which treatment is available, but is not a person who falls within the meaning of Chapter 3 of the Mental Health Act 2007, the Local Court has the power to deal with the ... ”
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    • “ Suspended sentences: Section 12 ”
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    • “ Interstate convictions can be taken into account by the court on sentence, but they do not generally appear on the NSW criminal history that the police tender to the court and they do not have to be voluntarily disclosed. You must however tell the court of any interstate convictions if you are ... ”
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    • “ Appeals from decisions of the Local Court can be either made to the Supreme Court or the District Court under the Crimes (Appeal and Review) Act 2001. Appeals to the Supreme Court can only be on the ground that involves a question of law alone: see s 58 Crimes (Appeal and Review) Act 2001. ”
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