I am taking an appeal case. It is an appeal against sentence, which is out of time for appeal by right. Therefore there has to be an application to the court, in this case the Court of Appeal, for permission to bring an out of time appeal.
This is provided for under the Criminal Procedure Act 2011, s232(5), if, there has been a [potential] miscarriage of justice.
Miscarriage of justice means: any error, irregularity, or occurrence in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or that has resulted in an unfair trial or a trial that was a nullity. ‘Trial’ includes a proceeding in which the appellant pleaded guilty.
So, in this case, the appellant did plead guilty on the advice of his lawyer. However the appellant had a viable defence, which simply was never argued in front of a jury. Now of course the jury may have found the defendant guilty, that’s the nature of the beast of course, you roll them bones and take your chances.
Because there was a viable defence, that was never put to the jury, there is a real risk the outcome of the ‘trial’ was affected, and hence grounds for an appeal.