> To County Court or Supreme
Court against finding of guilt or sentence by
Magistrates' Court
To County Court
The simplest and most commonly used of
the appeal options from a criminal hearing at the
Magistrates' Court is appeal to the County Court pursuant
to Criminal Procedure Act
ss.254-256; County Court Criminal Procedure Rules 3.01-3.08. It allows a complete re-hearing on
fact and law. Extension of time: Van Rooy v County Court [2006] VSCA 56.
The prosecution right of appeal is limited to sentence: Criminal Procedure Act
ss.257-259.
Ordinarily there is no further appeal. In some unusual
circumstances, there may be order 56 judicial review to
Supreme Court: see below on this page.
To Supreme Court by section 272 appeal
An alternative course sometimes used is pursuant to the Criminal Procedure Act
ss.272, 273 (formerly the section 92 appeal under
Magistrates' Court Act and yet earlier known as order to
review). It takes the case to a Judge of the Supreme
Court. There is more detailed provision for such appeals
provided by Supreme Court (Criminal Procedure) Rules order 3A.
Availability to prosecution. A feature of the
s.272 type of appeal is that the prosecution has a much
right of appeal as does a defendant. This contrasts with
the quite limited right of prosecution appeal, otherwise
available. Where the informant is a member of police,
such appeals must be brought by the Director of Public
Prosecutions on behalf of the informant: s.272(2). In
practice this is usually done by naming the Appellant as
"Director of Public Prosecutions (on behalf of
...)". Prosecution appeals are brought quite
sparingly. In practice, the Office of Public Prosecutions
usually acts for the prosecution upon s.272 appeals from
police prosecutions, whether it be a defence or a
prosecution appeal.
Restrictions. The availability of an appeal such
as s.272 appeal has some major restrictions.
* It is confined to "questions of law", for
example the meaning of statutory provisions (the drink
driving laws have been a major source of case), the
common law, the rules of evidence etc. In practice the
tendency is to entertain "errors of law", not
merely areas of unsettled law.
* It does not allow a re-hearing of factual disputes. It
is however to raise a "question of law" to
argue that a Magistrate has made a finding of fact that
no reasonable Magistrate could have made: Hardy v
Gillette [1976] VR 392. This however is a difficult
basis upon which to proceed, and is ill-advised except
upon an extreme example.
* It does not allow a challenge to exercise of discretion
by a Magistrate, although it is well settled that certain
kinds of challenge to purported exercises of discretion
do raise a "question of law". The leading case
on this point remains Australian Coal and Shale Employees
Federation v The Commonwealth[1953] HCA 25, (1953) 94 CLR 621. To
raise a question of law upon a purported exercise of
discretion, it is necessary to argue the Magistrate has
acted upon a wrong principle, allowed extraneous or
irrelevant matters to guide or affect him or her,
mistaken the facts or not taken into account some
material consideration. "In such a case, although
the nature of the error may not be discoverable, the
exercise of the discretion is reviewed on the ground that
a substantial wrong has in fact occurred." This
however is also a difficult basis upon which to proceed,
and is ill-advised except upon an extreme example.
* It must be from a "final order" (because
s.272 expressly says so). The usual "final
order" will be a conviction or dismissal, with the
"question of law" based upon rulings that led
to the result. A striking out of the charge is not
enough: DPP v Moore
[2003] VSCA 90. An interlocutory order or a question
raised but immaterial to the final order is not enough,
nor are results of committal proceedings.
Commencement. A s.272 appeal must be instituted
within 28 days after the day on which the order
complained of was made: 272(3). This is strictly applied,
though there is provision for leave to proceed out of
time in exceptional circumstances and where there is no
material prejudice any other party: s.272(8). The appeal
is instituted by application to an Associate Judge of the
Supreme Court without notice to any other person. The
application is to be supported by affidavit filed before
or upon the attendance. For a defence appeal, the
informant named upon the charge should be named as the
sole respondent. Upon appearance there will usually be
attention to the Affidavit, and to questions of law said
by the appellant to arise. It is good practice to have
proposed questions of law drafted ready for the Associate
Judge. If questions are approved, further orders will be
made as to service on the respondent and the Magistrate,
answering affidavits, reference to the listing system and
other matters.
The affidavit. The affidavit is an account of
the proceedings at the summary hearing. Typically it is
sworn by the defendant, the instructor attending, the
prosecutor or the informant. Sometimes it is sworn by the
practitioner who appeared at the Magistrates' Court,
though if this is so, it is inappropriate for the
practitioner to appear on the appeal: R v Roberts[2004] VSCA 2. The deponent of the affidavit is
really a witness upon the appeal, and it is undesirable
that a practitioner appearing should also be a witness.
Recordings are now made of the proceedings at the
Magistrates’ Court. The affidavit may need little
more than reference to and exhibiting the transcript. The
affidavit should avoid new comment or argument, or
references to background matters out of court. The
affidavit should have all relevant exhibits within
possession or power of possession, including a
Magistrates' Court certificate of result and the charge.
The hearing. The hearing could be from within a
few weeks or months from the appearance before the
Associate Judge. It occurs in the Criminal Division of
the Supreme Court. With uncommon and slight exception,
the facts as to the hearing at the Magistrates' Court are
decided upon the affidavits. The usual practice is that
there is no affidavit filed by the Magistrate. There is
not always an affidavit filed on behalf of the
respondent, especially where there is no contest with the
contents of the affidavit filed on behalf of the
appellant.
Remedy. The court may such order as it thinks
appropriate: s.272(9). Frequently, upon successful
appeal, the case will be remitted to the Magistrates'
Court for re-hearing in accordance with law. By consent,
the court might make a final order: DPP v Parsons [1993]
1 VR 1. If it has been held there was a factual finding
or exercise of discretion no reasonable Magistrate could
make, the court might make the appropriate final order,
regardless of consent.
Costs. If the appeal is dismissed, it will
probably be with the costs of the other party to be paid.
If the appeal succeeds, it will probably be with costs. A
respondent ordered to pay costs may apply to the court
for an indemnity pursuant to the Appeal Costs Act s.13.
Appeals from trial convictions to the Court of Appeal
division of the Supreme Court: Criminal Procedure Act
Part 6.3; Supreme Court Act
sections 10-16; Supreme Court (Criminal Procedure) Rules. Normally these are applications for
"leave to appeal". The application is not a
re-hearing. It is essentially legal argument about what
has occurred at trial.
The Court of Appeal ordinarily for a case of this kind is
comprised of two or three judges of Appeal; occasionally
more especially if the overruling of a precedent of the
Court of Appeal is under consideration; usually only two
for interlocutory matters. In any case, if the President
of the Court of Appeal so determines, two Judges of
Appeal constitute, and may exercise all the jurisdiction
and powers: Supreme Court Act s.11;
R v Sebalj
[2006] VSCA 106.
Applications to the Court of Appeal in Victoria against
conviction by jury are governed inter alia by Criminal Procedure Act
s.276(1) which provides
Determination of appeal against conviction
(1) On an appeal under section 274, the Court of Appeal
must allow the appeal against conviction if the appellant
satisfies the court that -
(a) the verdict of the jury is unreasonable or cannot be
supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or
in relation to, the trial there has been a substantial
miscarriage of justice; or
(c) for any other reason there has been a
substantial miscarriage of justice.
The first category, verdict unreasonable or unsupportable
having regard to the evidence, has meaning from High
Court authority which has developed an "unsafeness
jurisdiction" relevant to the Victoria section and
other jurisdictions with similar provisions: SKA v R
[2011] HCA 13, (2011) 85 ALJR 571; R v Nguyen[2010] HCA 38, (2010) 271 ALR 493; Libke v R[2007] HCA 30, (2007) 230 CLR 559; M v R [1994]
HCA 63, (1994) 181 CLR 487; CRR v R
[2011] VSCA 142. A Court of Appeal in considering this
kind of unsafeness ground must undertake an independent
examination of the relevant evidence to determine whether
it was open to the jury to be satisfied beyond reasonable
doubt. The question requires the court of criminal appeal
to decide whether the state of the evidence was such as
to preclude a jury acting reasonably from being satisfied
of guilt to the requisite standard; the question is
whether there was a ‘solid obstacle to reaching a
conclusion beyond reasonable doubt’ or whether,
instead, the ‘path to a conviction was open’;
to conclude that a guilty verdict was not reasonably open
on the evidence is equivalent to saying that no
reasonable jury could have returned that verdict on the
evidence as presented in the trial: R v Vjestica
[2008] VSCA 37, (2008) 182 A Crim R 350. The appeal court
can have regard to a failure to give evidence at trial by
an applicant in a position to know whether he or she
committed the offence: Butler v R
[2011] VSCA 417; R v Allen
[2007] VSCA 97; R v Doherty
[2003] VSCA 158, (2003) 6 VR 393.
Another kind of "unsafeness" ground which may
be seen as part of the first category is inconsistency of
verdict as between counts against an accused: MFA v R
[2002] HCA 53, (2002) 213 CLR 606; Mackenzie v R
[1996] HCA 35, (1996) 190 CLR 348; Ash v R[2011]
VSCA 112; R v JA[2008]
VSCA 169; R v Miller
[2007] VSCA 249; R v RTM
[2006] VSCA 170; R v Cerminara
[2006] VSCA 14; R v Allen
[2006] VSCA 3; R v Ritchie
[2005] VSCA 166; R v Le-Gallienne [2004] VSCA 223; R v Sobevski
[2004] VSCA 216, (2004) 150 A Crim R 355; also
probability of compromise verdict: R v Tran
[2005] VSCA 195. There may also be inconsistency of
verdict as between separate accused at joint trial: R v Moroz
[2007] VSCA 30; R v Iliovski
[2002] VSCA 172, (2002) 135 A Crim R 117.
The second category is where as the result of an error or
an irregularity in, or in relation to, the trial there
has been a substantial miscarriage of justice. It may lie
in wrong decision on a question of law. It may lie in
material erroneous statement of substantive law or of
procedural law. It may lie in erroneous application of
law, especially as to a rule of evidence admissibility.
At least under forerunner provisions, it was settled that
to be distinguished were decisions validly within a
legally recognised discretion correctly stated: "It
must appear that some error has been made in exercising
the discretion. If the judge acts upon a wrong principle,
if he allows extraneous or irrelevant matters to guide or
affect him, if he mistakes the facts, if he does not take
into account some material consideration, then his
determination should be reviewed... In such a case,
although the nature of the error may not be discoverable,
the exercise of the discretion is reviewed on the ground
that a substantial wrong has in fact occurred". House v R
[1936] HCA 40, (1936) 55 CLR 499. To ask whether a
discretion has been properly exercised is not to raise a
point of law DPP Ref No 1 of 1984 [1984] VR 727; DPP
Ref No 1 of 1992 [1992] 2 VR 405. It would extend in
a Commonwealth offence to error as to the
constitutionality of provision: R v Wei Tang[2007] VSCA 134, (2007) 16 VR 454. The category has
overlap with the third category, which often is relied
upon instead.
The third category - that on any ground there has been a
substantial miscarriage of justice - concerns a
multiplicity of other ways a trial may miscarry.
Sometimes High Court cases have seen these as further
areas within the "unsafeness jurisdiction": Gipp v R
[1998] HCA 21, (1998) 194 CLR 106; Ratten v R
[1974] HCA 35, (1974) 131 CLR 510. As a general rule
there cannot be miscarriage on a ground unless it follows
point taken by defence at trial: R v Tran
[2007] VSCA 19; R v Wright
[1999] VSCA 145; R v Clarke and Johnstone [1986]
VR 643; R v Gallagher [1998] 2 VR 67.
It is to be noticed that 276(1)(b) and (c) imply a
difference between miscarriage of justice and substantial
miscarriage of justice: it is the latter which must be
shown for successful appeal. Though under somewhat
different earlier legislation, the cases have required
for substantial miscarriage that there has been a
fundamental irregularity or that, even in the absence of
such an irregularity, the appellant has been deprived of
a chance which was fairly open of being acquitted: Evans v R
[2007] HCA 59; Conway v R[2002] HCA 2,(2002) 209 CLR 203; Wilde v R
[1988] HCA 6, (1988) 164 CLR 365. The issue of
deprivation of chance was considered in Weiss v R
[2005] HCA 81, (2005) 224 CLR 300, see also Gassy v R
[2008] HCA 18, (2008) 236 CLR 293; Libke v R[2007] HCA 30, (2007) 230 CLR 559;Darkan v R
[2006] HCA 34, (2006) 227 CLR 373. The appellate court
must itself decide whether a substantial miscarriage of
justice has actually occurred. Reference to inevitability
of result (or the converse references to "fair"
or "real chance of acquittal") are useful as
emphasising the high standard of proof of criminal guilt.
They are also useful if they are taken as pointing to the
natural limitations that exist in the case of any
appellate court proceeding wholly or substantially on the
record. That task is to be undertaken in the same way an
appellate court decides whether the verdict of the jury
should be set aside on the ground that it is
unreasonable, or cannot be supported having regard to the
evidence. The appellate court must make its own
independent assessment of the evidence and determine
whether, making due allowance for the natural limitations
that exist in the case of an appellate court proceeding
wholly or substantially on the record, the accused was
proved beyond reasonable doubt to be guilty of the
offence on which the jury returned its verdict of guilty.
However there may be cases where it would be proper to
allow the appeal and order a new trial, even though the
appellate court was persuaded to the requisite degree of
the appellant's guilt. Cases where there has been a
significant denial of procedural fairness at trial may
provide examples of cases of that kind: for example Evans v R
[2007] HCA 59; R v Shalala[2007]
VSCA 199, (2007) 17 VR 133. For other considerations
since Weiss, see for example: R v Wei Tang[2007] VSCA 134, (2007) 16 VR 454; R v Gunawardena [2007] VSCA 43; R v Weiss (No 2) [2006] VSCA 161.
Recognised topics for grounds of appeal include the
following.
(a) Inadequate or erroneous
judicial instruction to jury. A trial judge is
bound to direct the jury as to any principle of
law or rule of practice applicable to the case
and ordinarily summarise the evidence and the
respective cases for the prosecution and the
accused: Alford v Magee [1952] HCA 3, (1952) 85 CLR 437; Domican v R [1992] HCA 13, (1992) 173 CLR 555; R v Gose[2009] VSCA 66; R v AJS[2005] VSCA 288, (2005) 12 VR
563; R v Zilma [2006] VSCA 72; R v Dao[2005] VSCA 196; R v Soldo [2005] VSCA 136.
(b) Failure to relate directions
on law to the facts in issue in the case: R v Zilma [2006] VSCA 72; R v De'Zilwa [2002] VSCA 158; R v Crockett [2001] VSCA 95; R v Pope[2000] VSCA 108.
(c) Imbalanced judicial comment on
facts or direction to jury, or unwarranted
intrusion:R v Gose[2009] VSCA 66; R v Brdarovski[2006] VSCA 231, (2006) 166 A
Crim R 366;R v Ivanovic [2005] VSCA 238; R v Lao[2002] VSCA 157; R v Mong [2002] VSCA 203. As a general rule
judicial comment to the jury is allowed providing
it is made clear to jury that it is unbinding
comment.
(d) Failure to discharge jury
without verdict due to impugned material or
incident where there has been a high degree of
need for such discharge. Whether such a need
exists will depend upon the circumstances as seen
by the judge in the context of the trial and the
nature of the impugned material which is said to
be prejudicial. However, and notwithstanding the
position of primacy of the judge in such matters,
there may be cases where an appellate court is
driven to the conclusion that the exercise of the
discretion adverse to the interests of the
accused has occasioned the risk of a substantial
miscarriage of justice: Crofts v R[1996] HCA 22, (1996) 186 CLR
427; R v Halliday [2009] VSCA 195, (2009) 23 VR 419.
(e) Direction by the trial judge a
late stage in the trial, that has the effect of
materially changing the prosecution’s case
such as to add a new basis on which the jury
could convict the offender, in circumstances
where the offender is denied the opportunity of
meeting the new case by moulding the defence to
it through evidence or through the address to the
jury:R v SAB[2008] VSCA 150;R v Nguyen[2006] VSCA 293.
(f) Substantial possibility that
jury mistaken or misled upon some material
matter: Davies v R[1937] HCA 27, (1937) 57 CLR
170. An example is a collective misunderstanding
of fact by parties and trial Judge: R v Challoner [1998] VICSC 356.
(g) Incompetent defence
representation at trial: Nudd v R [2006] HCA 9, (2006) 80 ALJR 614; Ali v R [2005] HCA 8, (2005) 79 ALJR 662 ; TKWJ v R[2002] HCA 46, (2002) 212 CLR 124;Ratten v R [1974] HCA 36, (1974) 131 CLR 510; Sharma v R [2011] VSCA 356; R v Miletic
[1997] 1 VR 593; R v Wakim [1998] 2 VR 46.
(h) Breach of natural justice such
as may arise where unrepresented accused refused
adjournment to seek representation: R v Kerbatieh[2005] VSCA 194; R v Osborne[2002] VSCA 156; Dietrich v R[1992] HCA 57, (1992) 177 CLR
292.
(i) Trial resulting from refusal
to grant adjournment of trial to investigate a
question where refusal was not reasonably open: SM v R
[2011] VSCA 332
.(j) Lack of legal representation
resulting in an unfair trial: R v Hoang [2007] VSCA 117.
(k) Inappropriate prosecution
conduct: Whitehorn v R[1983] HCA 42, (1983) 152 CLR
657;R v Russo [2004] VSCA 206; R v Armstrong[1998] VICSC 350,[1998]
4 VR 533. Crown unjustifiably refusing to call
witness wanted called by defence: R v Jensen [2009] VSCA 266. Crown putting forward,
for the first time in final address, a new basis
on which it says the accused may be convicted, in
circumstances where the defence has not had the
opportunity of meeting the new claim: R v Howard [2005] VSCA 235.
(l) Judicial bias, actual or
ostensible: Antoun v R [2006] HCA 2, (2006) 80 ALJR 497.
(m) Juror bias: Webb v R
[1994] HCA 30, (1994) 181 CLR 41; R v Goodall [2007] VSCA 63; R v ALH[2003] VSCA 129, (2003) 6 VR
276.
(n) Joinder of trial against
separate accused shown inappropriate by
subsequent events at trial: R v Alexander and McKenzie[2002] VSCA 183, (2002) 6 VR
53; R v Demirok [1976] VR 244.
(o) Procedural error, eg jury
separation without required oath or otherwise
irregular: R v Appleby (1996) 88 A Crim
R 456; R v Chaouok [1986] VR 707.
Upon successful appeal, jurisdiction includes to order a
new trial or direct acquittal be entered: Criminal Procedure Act
s.277. The latter is in practice exceptional. The power
to order a new trial extends to ordering a new trial for
an offence for which the appellant could have been
convicted at the first trial, including for example a
lesser alternative offence provided by statute: AJS v R
[2007] HCA 27, (2007) 235 CLR 505. The factors which
should influence an appellate court in exercising such a
discretion will depend basically on all the facts of each
individual case, the circumstances which surrounded the
trial, the nature of the miscarriage of justice, the
strength of the prosecution case and a full and fair
balancing of the public interest and the personal
interests of the successful appellant. Such
considerations are not exhaustive. See R v Poduska
[2008] VSCA 147; R v Wei Tang
[2007] VSCA 144, (2007) 16 VR 454; R v Nicoletti
[2006] VSCA 175, (2006) 164 A Crim R 81; R v Redmond
[2006] VSCA 75; Edwards v R[1993]
HCA 63, (1993) 178 CLR 213. See also R v Thomas (No 3) [2006] VSCA 300 and R v Thomas (No 4) [2008] VSCA 107 (fresh evidence since trial).
The Court is functus officio ie without jurisdiction to
re-open a criminal appeal which it has already determined
on the merits; there may be such a jurisdiction if the
decision has been vitiated by fraud or some other
circumstances which rendered its decision a nullity: R
v McNamara [1997] 1 VR 257; R v GAM
[2003] VSCA 185. There is however possible remedy by way
of Petition of Mercy pursuant to Criminal Procedure Act
s.327; see R v Alexander[2006] VSCA 142, R v GAM
[2005] VSCA 23.
Extension of time for appeal or leave against jury
verdict of guilty, or against sentence: CTG v R [2011]
VSCA 429; DPP v Hayden[2006] VSCA 152; R v Kolose[1999] VSCA 57; R v Craker[1999] VSCA 63; R v Rickard[1999] VSCA 64.
There is provision for prosecution reference of points of
law to the Court of Appeal after acquittal at trial or
upon County Court appeal, though the acquittal cannot be
disturbed. These are known as a Director's Reference: Criminal Procedure Act
s.308. In practice, very few are brought. An example
(under previous legislation) is DPP Ref No1 of 2001 [2002] VSCA 89.
> To Court of Appeal against
conviction by County Court or Supreme Court after plea of
guilty
Conviction appeal in these
circumstances is open if it appears (1) that the
appellant did not appreciate the nature of the charge or
did not intend to admit guilt, or (2) that upon the
admitted facts could not in law have been convicted of
the offence charged, or (3) that for any other reason
there has been miscarriage of justice: R v Holden
[2009] VSCA 254.
> To Court of Appeal against
sentence by County Court or Supreme Court
These are appeals concerning sentence
first imposed by County Court or Supreme Court after jury
trial or plea of guilty.
Criminal Procedure Act Part 6.3; Supreme Court (Criminal Procedure) Rules. The application if by a sentenced person
initially is under Criminal Procedure Act
s.280 for leave to appeal which usually is set down for a
separate hearing in advance. Where it is held arguable
that there has been a sentencing error, even with respect
to an individual sentence, leave must be granted unless
the judge is satisfied that there is no reasonable
prospect that a less severe sentence would be imposed on
appeal: Ludeman v R
[2010] VSCA 333.
To succeed on the appeal, it is necessary to establish
matters such as specific error of statute, error of
principle, weighting of sentencing factor not reasonably
open, finding of sentencing facts not reasonably open,
disparity with co-offenders or manifest excess of
sentence: R v Taylor and O’Meally [1958] VR
285. Another possible basis is procedural unfairness: R v Alexandridis[2008] VSCA 126.
Manifest excess of sentence is a non-specific error
frequently not admitting of amplification. It is a
residuary category of error; appellate intervention on
this ground is not justified just because a sentence is
markedly different from other sentences that have been
imposed in other cases; the sentence imposed must be
explicable only on the ground of a misapplication of
principle, even if the statement of reasons of the
sentencing judge does not make such misapplication
apparent: Wong v R
[2001] HCA 64, (2001) 207 CLR 58; R v S [2006]
VSCA 134. The sentence must be obviously, or strikingly,
excessive, such that the appeal court is entitled to
conclude that there was no proper exercise of the
sentencing discretion at all: R v Winter
[2006] VSCA 144.
The remedy is re-sentence, or remittal to the County
Court: Criminal Procedure Act
s. 286. It has been contrary to practice to increase
without a warning and to grant leave to abandon
application for leave to appeal if sought.
There is Court of Appeal power on a sentence appeal to
give or review a guideline judgment: Sentencing Act ss.
6AA-6AG. This may set out (a) criteria to be applied in
selecting among various sentencing alternatives; (b) the
weight to be given to the various purposes specified in
section 5(1) for which a sentence may be imposed; (c) the
criteria by which a sentencing court is to determine the
gravity of an offence; (d) the criteria which a
sentencing court may use to reduce the sentence for an
offence; (e) the weighting to be given to relevant
criteria; (f) any other matter consistent with the
principles contained in this Act.
In the Court of Appeal, fresh evidence which relates to
events which have occurred since sentence will be
received if it demonstrates the true significance of
facts in existence at sentence to be harsher to the
offender than had then been understood; such fresh
evidence may vitiate the sentencing discretion: Marsh v R[2011]
VSCA 6 (victim of offending subsequently forgiving); R v Cochrane[2008] VSCA 60 and R v Mourad[2008]
VSCA 4 (after sentence cancellation of parole on another
matter);R v Dang[2009]
VSCA 183 and R v McLeod
[2007] VSCA 183, (2007) 16 VR 682 (forfeiture subsequent
to sentence); R v Alashkar[2007] VSCA 182 (after sentence cancellation of
parole on another matter); R v Jahanara[2006] VSCA 260 (lesser injuries to victim); R v Nguyen
[2006] VSCA 184 (hardship to family); R v Wooden
[2006] VSCA 97; R v SH [2006]
VSCA 83 (mental illness and need for protection); R v Pividor
[2002] VSCA 174 (protection required in prison);R v Pilarinos[2001] VSCA 9 (illness); R v Spagnolo
[2000] VSCA 126 (illness); R v Rostom[1995] VICSC 213,[1996] 2 VR 97
(protection required in prison); R v WEF [1998] 2
VR 385 (illness);R v Eliasen (1991) 53 A
Crim R 391 (illness). Outside of these principles is
evidence which does no more than show the working out of
matters that were, in general terms, recognised and taken
into account at the time of sentence: R v Jones
[2006] VSCA 266; R v McLachlan
[2004] VSCA 87, (2004) 8 VR 403.
There is a discretion to receive evidence that ought to
have been but was not before the sentencing judge, the
evidence being admitted to avoid a miscarriage of
justice: R v Cako
[2000] VSCA 147; DPP v Burgess
[2000] VSCA [2001] VSCA 135, R v Mandala
[1999] VSCA 159.
For prosecution appeals against sentence, the main
provisions are Criminal Procedure Act
ss.287-294. The right conferred upon the Director of
Public Prosecutions to appeal against sentence is
conditioned upon the Director being satisfied that there
was an error in the sentence imposed, that a different
sentence ought to have been imposed and that it is in the
public interest that an appeal be brought; if the Court
finds that there is an error and that a different
sentence should be imposed, it must allow the appeal and
if either of these requirements is not met, it must
dismiss the appeal; the need to be satisfied that a
different sentence should be imposed serves to preserve a
good part, at least, of the residual discretion of the
Court which existed under previous law: DPP v Karazisis [2010] VSCA 350. In the event that prosecution
appeal is allowed, the Court must set aside the sentence
imposed by the originating court and impose the sentence,
whether more or less severe, that it considers
appropriate taking into account any factor, other than
double jeopardy, that it regards as relevant to
re-sentencing the offender: s.290; DPP v Karazisis.
> Order 56 Judicial Review
Supreme Court (General Civil Procedure) Rules order 56. This is a course applying both to
criminal and non-criminal matters, though of narrow
application and relatively uncommon. Judicial review may
lie to correct inferior courts (and tribunals) which
commit jurisdictional error or breach of natural justice
(also against public bodies which act beyond lawful power
ie ultra vires or err in the exercise of power).
It also may lie to correct inferior courts (and
tribunals) which commit error on the face of the record
or have been subject of fraud. The record includes
reasons: Administrative Law Act
s.10; Lianos v Inner Eastern Health Care Network[2001] VSCA 53; Flynn v DPP
[1998] 1 VR 322; Kuek v Wellens[2000] VSC 326; Sidebottom v County Court [2001] VSC 18.
One breach of natural justice is bias, actual or
ostensible: Antoun v R
[2006] HCA 2, (2006) 80 ALJR 497; Webb R[1994]
HCA 30, (1994) 181 CLR 41; Livesey v NSW Bar Association [1983] HCA 17, (1983) 151 CLR 288. Importance
of requesting disqualification or objecting: Vakuata v R
[1989] HCA 28, (1989) 167 CLR 568; Humphrey v Wills [1989]
VR 439; Rozenes v His Honour Judge Kelly [1996] 1
VR 320; Willis v Magistrates' Court (1996) 89 A
Crim R 273.
An order at committal proceedings for Victorian offences
committing for trial or refusing to commit is regarded as
ministerial and not judicial and as not amenable to
certiorari: Potter v Tural
[2000] VSCA 227.
It has become accepted, at least implicitly, that the
County Court is an inferior court and not made otherwise
by County Court Act
s.36A. There is however some uncertainty whether
certiorari can ever lie in County Court criminal
proceedings which are between arraignment and conclusion
on an issue which ultimately would be exposed to Court of
Appeal criminal jurisdiction: McGuire v DPP
[2001] VSC 11. Note however Administrative Law Act
s.12 by which any proceeding may be removed into the
Supreme Court notwithstanding any provision to the
contrary in an Act passed before such commencement.
There remains a discretion not to grant certiorari,
mandamus or prohibition where a basis is made out. One
reason tending against grant is where there is provision
for an alternative and preferable remedy: Kuek v Victoria Legal Aid[2001] VSCA 80. Another reason tending
against grant is the undesirability of fragmenting
criminal trial proceedings: Iorlano v R(1983)
151 CLR 678; Rozenes, ex parte Burd (1994) 68 ALJR
372; Quoc v Victoria Legal Aid [1999] VSC 1.
Loss in the Court of Appeal (even for
the prosecution) is open to High Court appeal. There is
though formidable special leave requirement before the
substantive issues will be heard: see Constitution s.73, Judiciary Act Part V
Division 1; Liberato v R[1985] HCA 66, (1985) 159 CLR 507. Special leave
applications are often heard separately, typically in
Melbourne if of Victoria origin. Remitter from High Court
to Court of Appeal: R v Weiss (No 2) [2006] VSCA 161.
this page is www.justd.com/crimappeals.htm
page author
Don
Just barrister of Victorian
Bar Melbourne,
Victoria, Australia