An appeal is a special proceeding to a superior court of a judgment of a trial court or a lower appeal court. It essentially asks that the higher court rule that the lower court was in error and either allow a new trial or reverse the judgment of the trial court.

In most cases, a litigant is allowed one appeal as of right, although there are exceptions for lower misdemeanour offences or orders that strictly relate to legal costs. Again, as a general rule, any attempt to further appeal an appeal usually requires leave of the higher court in which a litigant seeks to appeal.

Standard of reviewEdit

In most cases, an appeal is not a new trial and the appeal court does not have discretion to reach it's own conclusions. The task of the appeal court is to determine if the trial court made an error that led to an unjust result. The burden for the appellant is to show that the trial court's error was so egregious that the opposite result was likely.

  • On a matter of fact, the appeal court will only reverse if the trial court's decision was manifestly incorrect, such as when the trial judge ignored evidence, did not explain why evidence supporting the losing party was rejected, or there was accepted evidence that clearly supported the appellant's version of events that appears to have been ignored.
  • However, on questions of law, the standard is that the trial judge must have stated the law correctly. If the trial judge misapprehended the law, an appeal court will reverse even if the result may have been the same if the judge had stated the law correctly.
  • In cases of mixed fact and law (or, how the court applied the law to the facts), an appeal court may reverse the decision if they feel the trial court's conclusion was unreasonable.

For example:

John, who has been telling everyone in town that he is going to kill Harry the next time he sees him because he has been spreading lies about him confronts Harry outside a nightclub. Harry has heard the threats and pulls out his gun to get John to back off. As John backs off, Harry's gun discharges, injuring John. Harry is charged with assault causing bodily harm and pleads two consistent defences - lack of mens rea as the discharge was accidental and self-defence. Witness testimony is inconsistent whether John, who is half Harry's size, actually posed a threat to him and whether Harry provoked the confrontation by spreading lies about John. After a trial, the judge convicts Harry of the offence saying he believes the witnesses who say Harry provoked the confrontation and that he believes Harry discharged the weapon deliberately and in any event had the requisite mens rea when he pulled the gun out.

On appeal, it would be difficult for Harry to overturn the judge's finding of fact. However, he may do better with the law. As intent is a key element of the offence, it would have been up to the prosecution to prove mens rea beyond a resonable doubt. As such, any evidence that the shot was accidental should be weighted more heavily in Harry's favor because he was not required to prove that he didn't pull the trigger deliberately.