Grounds of appeal

A verdict that is unreasonable or cannot be supported by the evidence. In Bouvette all nine judges held the record did not meet that standard, and the acquittal rested on another basis.

R. v. Bouvette, 2025 SCC 18 · Criminal Code, s 686

The court allows the appeal if it thinks the conviction is unsafe. In England and Wales it decides that for itself. Unsafe does not mean innocent.

Criminal Appeal Act 1968, s 2 · Criminal Appeal (Northern Ireland) Act 1980, s 2

One basis for a miscarriage of justice: a verdict that no reasonable jury, properly directed, could have returned.

Criminal Procedure (Scotland) Act 1995, s 106

Broadly similar across the states we could read, alongside a wrong decision of law and a miscarriage of justice.

Criminal Code (Qld), ss 668D, 668E · Criminal Appeals Act 2004 (WA), s 30 · Criminal Code Act 1983 (NT), ss 410, 411

After a conviction on an indictable offence, an appeal on a question of law alone is as of right. Questions of fact, or of mixed fact and law, need leave or a certificate.

Criminal Code, ss 675, 686

In Hay six judges read the charge as a whole and found no error about the lone eyewitness. Fish J. would have found one.

R. v. Hay, 2013 SCC 61

The judge or jury must not simply choose between the accused and the Crown witness. In Berg the ground failed because the reasons, read as a whole, applied the right standard.

R. v. Berg, 2026 SCC 21

For sufficient probative value on credibility, a conviction must let the jury infer a specific capacity or willingness to be dishonest. Most crimes of violence do not.

R. v. Hussein, 2026 SCC 2

In Pitchford the trial court omitted the third step of Batson and never decided whether the prosecutor's stated reasons were pretextual. The Court held the argument was not waived.

Pitchford v. Cain, 608 U.S. 391 (2026)

A court of appeal may allow an appeal if on any ground there was a miscarriage of justice. It cannot declare someone factually innocent.

Criminal Code, s 686 · R. v. Mullins-Johnson, 2007 ONCA 720

Appeal is with leave, and this is the only test.

Criminal Procedure (Scotland) Act 1995, s 106

Leave is required on any ground, and the question is whether there was a substantial miscarriage.

Criminal Procedure Act 2009 (Vic), ss 274, 276

Further appeals need leave. The Supreme Court grants it if necessary in the interests of justice, which can include a substantial miscarriage that may have occurred or may occur.

C (SC 22/2022) v R [2022] NZSC 82

In criminal cases, permission is granted where the panel thinks there is a risk that a serious miscarriage of justice may have occurred.

JCPC Practice Directions (September 2025)

An agreement not to appeal a sentence is unenforceable when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.

Hunter v. United States, 608 U.S. 713 (2026)

In Hay the evidence was credible, went to a decisive issue and could reasonably be expected to have affected the verdict. The remedy was a new trial, not an acquittal.

R. v. Hay, 2013 SCC 61 · Criminal Code, s 683(1) · Palmer v. The Queen, [1980] 1 S.C.R. 759, as applied in R. v. G.D.B., 2000 SCC 22

The court can receive evidence not heard at trial if that is necessary or expedient in the interests of justice.

Criminal Appeal Act 1968, s 23

This needs a reasonable explanation. If a witness has changed their account, the explanation must be supported by independent evidence.

Criminal Procedure (Scotland) Act 1995, s 106

After an appeal, a person still convicted may apply on the basis that such a fact shows a miscarriage of justice. A change in the law is not one.

Criminal Procedure Act 1993, ss 2, 3 · DPP v Buck [2020] IESC 16

There is no freestanding federal right, though a civil rights suit can challenge a state's procedures. For federal convictions, 18 U.S.C. § 3600 sets the conditions.

Reed v. Goertz, 598 U.S. 230 (2023) · District Attorney's Office v. Osborne, 557 U.S. 52 (2009) · 18 U.S.C. § 3600

Article 11.073 is a Texas law on changed science, one of the special routes some states provide after direct appeal.

Ex parte Roark, 707 S.W.3d 157 (Tex. Crim. App. 2024)

Illinois post-conviction law recognizes an actual innocence claim.

People v. Griffin, 2024 IL 128587

Two things must be shown: incompetent acts or omissions, and a resulting miscarriage of justice. Courts start from a strong presumption that counsel acted reasonably.

R. v. G.D.B., 2000 SCC 22, paras 26 and 27

Performance below an objective standard of reasonableness, and a reasonable probability that, but for the errors, the result would have been different.

Strickland v. Washington, 466 U.S. 668 (1984)

A lawyer who ignores a specific instruction to file a notice of appeal has acted unreasonably.

Roe v. Flores-Ortega, 528 U.S. 470 (2000)

A person who cannot afford a lawyer has a right to appointed, effective counsel on a first appeal as of right. It does not extend to discretionary appeals or state post-conviction proceedings.

Douglas v. California, 372 U.S. 353 (1963) · Evitts v. Lucey, 469 U.S. 387 (1985) · Ross v. Moffitt, 417 U.S. 600 (1974)

Suppressing evidence favorable to the accused violates due process where it is material to guilt or punishment, whatever the prosecutor's good or bad faith.

Brady v. Maryland, 373 U.S. 83 (1963)

The duty covers evidence affecting a key witness's credibility, and evidence known to police.

Giglio v. United States, 405 U.S. 150 (1972) · Kyles v. Whitley, 514 U.S. 419 (1995)

If false testimony known to the state could in any reasonable likelihood have affected the jury, a new trial is warranted.

Napue v. Illinois, 360 U.S. 264 (1959) · Glossip v. Oklahoma, 604 U.S. 226 (2025)

The accused pleaded guilty without being told that peer reviewers had found the pathologist's opinions unreasonable. The conviction was quashed and the Supreme Court entered an acquittal.

R. v. Bouvette, 2025 SCC 18

A net delay of about 35 months breached s. 11(b) of the Charter. The Court set aside the convictions and entered a stay.

R. v. Hanan, 2023 SCC 12

In Hussein the errors were serious and would ordinarily mean a new trial, but the Crown met the exceptionally high standard of showing a conviction was inevitable.

R. v. Hussein, 2026 SCC 2

The court can still dismiss an appeal if no substantial miscarriage occurred.

Criminal Code (Qld), ss 668D, 668E · Criminal Appeals Act 2004 (WA), s 30 · Criminal Code Act 1983 (NT), ss 410, 411

On federal habeas review of a state conviction, a claim defaulted under a state rule is barred unless there is cause and actual prejudice, or a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722 (1991)

On federal habeas, courts defer to state decisions on the merits unless they were contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, or rested on an unreasonable view of the facts.

28 U.S.C. § 2254(d)

After appeals are exhausted, the Minister may act if satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred. It is not another appeal.

Criminal Code, ss 696.1 to 696.4

The Commission needs a real possibility that the conviction would not be upheld. Normally that means an argument or evidence not raised before, and an earlier appeal or refusal of leave, though exceptional circumstances can displace those two conditions.

Criminal Appeal Act 1995, ss 9, 13 · Criminal Appeal Act 1995, s 10

The Commission can refer a case where a miscarriage of justice may have occurred and a reference is in the interests of justice.

Criminal Procedure (Scotland) Act 1995, ss 194B, 194C

Te Kāhui Tātari Ture cannot overturn a conviction or decide guilt or innocence. It refers cases to the appeal court, which decides.

CCRC: Investigate and review

A showing that, in light of new evidence, it is more likely than not that no reasonable juror would have found guilt beyond a reasonable doubt can get a barred constitutional claim heard.

Schlup v. Delo, 513 U.S. 298 (1995) · House v. Bell, 547 U.S. 518 (2006)