Criminal appeals
Victoria Australia



Don Just

barrister Melbourne


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To County Court or Supreme Court against finding of guilt or sentence by Magistrates' Court

To Court of Appeal against interlocutory decision or jury verdict of guilty

To Court of Appeal against conviction by County Court or Supreme Court after plea of guilty

To Court of Appeal against sentence by County Court or Supreme Court

Order 56 Judicial Review

To High Court

> 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.

The
Children, Youth and Families Act ss.424-429 and County Court Criminal Procedure Rules 4.01-4.08 are similar provisions for appeal from Children's Court.

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] VicRp 1,[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.

A s.272 decision is open to further appeal to the Court of Appeal provided leave is granted: see
Supreme Court Act s.10, s.17A(3A)(b), Part 2 Division 2; Supreme Court (General Civil Procedure) Rules.


> To Court of Appeal against interlocutory decision or jury verdict of guilty


See
Court of Appeal Registry for Practice Statements, Forms and Publications, FAQ's and other information.

Interlocutory decision

Provision for leave to appeal against interlocutory decision:
Criminal Procedure Act ss.295-301; Supreme Court (Criminal Procedure) Rules 301-307; DPP v BCR [2010] VSCA 229; R v DG [2010] VSCA 173; PNJ v DPP [2010] VSCA 88; CGL v DPP (No 2) [2010] VSCA 24. Generally it depends upon certification by trial judge: McDonald v DPP [2010] VSCA 45. Appeal from refusal to certify: GP v R [2010] VSCA 142. On issues of admissibility under of the Evidence Act s.97 and s.101: KJM v R [2011] VSCA 268.

Jury verdict of guilty

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. These initially are applications for leave to appeal which usually is set down for a separate hearing in advance or if so elected by the applicant, determined on the papers without an oral hearing.

The application, and the appeal if leave is granted, is not a re-hearing of trial. 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: MA v R [2012] VSCA 214; 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; Carrott v R [2013] VSCA 90; 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.

 There may also be inconsistency between verdict and failure to agree on verdict: Pillay v R [2014] VSCA 249.

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] VicRp 64,[1984] VR 727; DPP Ref No 1 of 1992 [1992] VicRp 71, [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, 1999] 3 VR 355; R v Clarke and Johnstone [1986] VicRp 64, [1986] VR 643.

It is to be noticed that s.276(1)(b) and (c) recognise a difference between miscarriage of justice and substantial miscarriage of justice: It is substantial miscarriage of justice which must be shown for successful appeal. Baini v R [2012] HCA 59; Andelman v R [2013] VSCA 25 are the leading cases. There is no single universally applicable definition of a substantial miscarriage of justice. That is because the possible kinds of miscarriage of justice dealt with by s 276(1) are too numerous and too different to permit prescription of a singular test. With respect to ss 276(1)(b) and (c) , the types of substantial miscarriage of justice include cases where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Those paragraphs also cover cases where there has been a serious departure from the prescribed processes for trial. A substantial miscarriage of justice may occur where there has been a departure from process even if the verdict was open or it is not possible to conclude whether the verdict was open. The question whether there has been a substantial miscarriage of justice may be affected by the strength of the prosecution case. In such cases, however, the Court of Appeal must be aware of the natural limitations that attend the appellate task. A finding that the conviction was inevitable is merely relevant to the Court’s determination of whether there has been a substantial miscarriage of justice. It does not conclude the issue. If it is submitted that the verdict was inevitable, the appellant need show no more than that, had there been no error, the jury may have entertained a doubt. In assessing inevitability, the Court of Appeal must decide that question on the written record of the trial. In cases where evidence has been wrongly admitted or excluded, the Court cannot determine that there has been no substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made.

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: Jury Directions Act 2013; 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 Soldo [2005] VSCA 136.
  • (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: NT v R [2012] VSCA 213; 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; De Silva v R [2013] VSCA 339; Sharma v R [2011] VSCA 356; R v Miletic [1997] 1 VR 593.
  • (h) 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.
  • (i) Lack of legal representation resulting in an unfair trial: R v Hoang [2007] VSCA 117.
  • (j) 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.
  • (k) Judicial bias, actual or ostensible: Antoun v R [2006] HCA 2, (2006) 80 ALJR 497.
  • (l) Juror bias: Webb v R [1994] HCA 30, (1994) 181 CLR 41; Zhu v R [2013] VSCA 102; R v ALH [2003] VSCA 129, (2003) 6 VR 276.
  • (m) 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] VicRp 19, [1976] VR 244.
  • (n) Procedural error, e.g. jury separation without required oath or otherwise irregular: R v Appleby (1996) 88 A Crim R 456; R v Chaouok [1986] VicRp 70, [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 i.e. 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.

Judge's report on appeal:
Criminal Procedure Act s.316; Supreme Court (Criminal Procedure) Rules. NJD v R [2010] VSCA 84.

Extension of time for appeal or leave against jury verdict of guilty, or against sentence: Criminal Procedure Act s.313; Jopar v R [2013] VSCA
83; CTG v R [2011] VSCA 429; DPP v Hayden [2006] VSCA 152.

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


See
Court of Appeal Registry for Practice Statements, Forms and Publications, FAQ's and other information.

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.278 for leave to appeal which usually is set down for a separate hearing in or if so elected by the applicant, determined on the papers without an oral hearing. 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] VicRp 46, [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 i.e. 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.

Unless excluded by Commonwealth or other statute, the remedy is in the nature of certiorari (quashing an order), mandamus (requiring action) and prohibition (preventing action):
Supreme Court (General Civil Procedure) Rules order 56; Administrative Law Act; Craig v South Australia [1995] HCA 58, (1995) 184 CLR 163; Returned Services v Liquor Licensing Commission [1999] VSCA 37; Perkins v County Court of Victoria [2000] VSCA 171. There is also common law remedy by declaration: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Coleman v DPP & County Court of Victoria [2002] VSCA 116; Rozenes v Beljajev [1995] 1 VR 533.

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] VicRp 42, [1989] VR 439; Rozenes v Kelly [1996] VicRp 20, [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.

Order 56 proceedings are usually upon affidavit.

An Order 56 decision is open to appeal to the Court of Appeal: see
Supreme Court Act s.10, Part 2 Division 2; Supreme Court (General Civil Procedure) Rules.


> To High Court

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.

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Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia

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