by Magistrates' Court or Children's Court
To County Court
Criminal appeals in Victoria Australia Don Just barrister
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Appeal to Court of Appeal against jury verdict of guilty
Appeal to Court of Appeal against conviction by County Court or Supreme Court after plea of guilty
Appeal to Court of Appeal against sentence by County Court or Supreme Court
Appeal
to County Court or Supreme Court against finding of guilt or
sentence
by Magistrates' Court or Children's 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 Magistrates' Court Act ss.83-90. It allows a complete re-hearing on fact and law. There are several such appeals listed in the County Court every day. An unsuccessful appellant is not ordered to pay prosecution costs, but a successful appellant against conviction usually gets costs. Extension of time: Van Rooy v County Court [2006] VSCA 56.
The prosecution right of appeal is limited to sentence: Magistrates' Court Act s.84.
The Children, Youth and Families Act s.424 is corresponding provision.
With prosecution appeal, the respondent appeal may apply to the County Court and the court may grant, an indemnity certificate in respect of the respondent's own costs of the appeal. See Appeal Costs Act s.15.
Magistrates' Court Act s.83-90. Ordinarily there is no further appeal, though see s.91. In some unusual circumstances, there may be order 56 judicial review to Supreme Court: see below on this page.
To Supreme Court by section 92 appeal
"Section 92 appeal" is an alternative course sometimes used. It is brought pursuant to the Magistrates' Court Act s.92. It takes the case to a Judge of the Supreme Court. The appeal is almost the same as that which for many years before 1989 had been known as an "Order to Review". It is a proceeding which had origins in the civil courts of England long ago. It continues to take much of the form and style more familiar to the civil courts than to the criminal. There is more detailed provision for such appeals Supreme Court (General Civil Procedure) Rules order 58.
Once s.92 appeal is chosen there cannot be return to a County Court appeal: s.83(2).
There is for the Children’s Court equivalent provision: see Children and Young Persons Act s.200; Y vF [2002] VSC 166.
Availability to prosecution. A feature of the s.92 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.92(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.92 appeals from police prosecutions, whether it be a defence or a prosecution appeal.
Restrictions. The availability of a s.92 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) 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.92 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.92 appeal must be instituted not later than 30 days after the day on which the order complained of was made: Magistrates' Court Act s.92(3). This is strictly applied, though there is provision to proceed out of time in exceptional circumstances and where there is no prejudice to the respondent: s.92 (5) and (6). The appeal is instituted by application to an Associate Judge of the Supreme Court without notice to any other person: order 58.07. 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. There is appeal from an Associate Judge to a Supreme Court Judge: Supreme Court (General Civil Procedure) Rules order 58.
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.92(7). 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: Director of Public Prosecutions 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.
A s.92 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.
Appeal books need to be prepared, for which there are published guidelines of the Registrar.
Appeal
to Court of Appeal against jury verdict of guilty
These are appeals from trial convictions to the Court of Appeal division of the Supreme Court: see Crimes Act Part 6; Supreme Court Act sections 10-16; Supreme Court (Criminal Procedure) Rules 2008. 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. Usually argument is mainly oral but it may be in writing alone: Crimes Act s.572; R v Clark [2005] VSCA 294; R v MG [2004] VSCA 239; R v Van Doorn [2004] VSCA 65.
The Court of Appeal ordinarily for a case of this kind is comprised of 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 though 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.
Bail pending conviction appeal to Court of Appeal will ordinarily be exercised by the Court of Appeal constituted by two judges of appeal, and granted only in very exceptional circumstances: Crimes Act s.579; Re Kulari [1978] VR 276; Re Clarkson [1986] VR 583; Chew v R (1991) 66 ALJR 209. Kostikidis v R (1996) 71 ALJR 79. Where the Court of Appeal quashes conviction and directs a new trial to be had, any application for bail pending new trial ordinarily should be made to a Judge of the trial division. Supreme Court of Victoria Practice Note No 5 of 2004 (pdf at Sup Ct site also (2004) 8 VR 500).
Applications to the Court of Appeal in Victoria against conviction by jury are governed inter alia by Crimes Act s.568(1) which provides three categories of miscarriage of justice and a proviso concerning lack of substantial miscarriage of justice. It is said the meaning of s.568(1) is far from settled: R v Gallagher [1998] 2 VR 671. Whether there has been a miscarriage points to whether the trial miscarried: R v Konstandopoulos [1998] 4 VR 381.
Crimes Act s.568(1) states:
Determination of appeals in ordinary cases
(1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that 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 or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal: Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
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: Libke v R [2007] HCA 30; M v R (1994) 181 CLR 487; Morris v R (1987) 163 CLR 454; Knight v R (1992) 175 CLR 495; Chidiac v R (1991) 171 CLR 432; Chamberlain v R (1984) 153 CLR 521. See also Pitkin v R (1995) 69 ALJR 612 (identification). Particularly since Morris, it is established that 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. 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 was the offender: R v Allen [2007] VSCA 97; R v Doherty [2003] VSCA 158, (2003) 6 VR 393; R v Neilan [1992] 1 VR 57.
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) 213 CLR 606 ; Mackenzie v R (1996) 190 CLR 348; 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; R v Harvey [1997] 2 VR 106; R v Bacash [1981] VR 923; also probability of compromise verdict: R v Tran [2005] VSCA 195. Acquittal on some counts though does not amount to a positive finding that the events recounted did not occur: R v J (No2) [1998] 3 VR 602. A jury is to be allowed some leeway e.g. an occasional mistake in favour of an accused; strictly logical considerations should not be pushed too far: R v Appleby (1996) 88 A Crim R 456. 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 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. To be distinguished are 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) 55 CLR 499; Thornberry v R (1995) 69 ALJR 777; Magna Alloys v Coffey [1981] VR 23. 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. The category has overlap with the third category, which often is relied upon instead.
The third category - that on any ground there was a 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" e.g. Davies v R (1937) 57 CLR 170; Ratten v R (1974) 131 CLR 510; Gipp v R (1998) 194 CLR 106; Fleming v R (1998) 197 CLR 250. 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 - examples of departure from general rule R v Cascone [1998] VICSC 336; R v Nguyen [2001] VSCA 1. Recognised topics for grounds include the following.
Refusal of no-case submission at trial is not a ground of appeal as such: R v Wood [1974] VR 117; R v Rowley (1986) 23 A Crim R 371. It is subsumed in the larger issue whether there has been a miscarriage of justice.
There is discountenance of late applications for leave to amend by the addition of new substantive grounds (as opposed to the correction of some inadequacy or infelicity of expression) on behalf of applicants who have had legal representation for some time and have had ample opportunity earlier to consider the adequacy of the grounds in the notice of application: R v Wright [1999] VSCA 145; R v Haseloff [1998] 4 VR 359.
For successful appeal, it is also necessary the prosecution fails the proviso, that is fails to show that no substantial miscarriage has occurred. The question requires attention to whether there has been a fundamental irregularity or whether, even in the absence of such an irregularity, the appellant has been deprived of a chance which was fairly open to him of being acquitted: Evans v R [2007] HCA 59; Conway v R (2002) 209 CLR 203; Wilde v R (1988) 164 CLR 365. The proviso of Victoria as to the issue of deprivation of chance was considered in Weiss v R (2005) 224 CLR 300, see also Gassy v R [2008] HCA 18; Libke v R [2007] HCA 30; Darkan v R [2006] HCA 34. 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. For other considerations of the application of the proviso since Weiss, see for example: R v Wei Tang [2007] VSCA 134; R v Gunawardena [2007] VSCA 43; R v Weiss (No 2) [2006] VSCA 161.
Upon successful appeal, there is jurisdiction to order a new trial or direct acquittal be entered: Crimes Act s.568(2). 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. 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 Wei Tang [2007] VSCA 144; R v Nicoletti [2006] VSCA 175; R v Redmond [2006] VSCA 75; R v De'Zilwa [2002] VSCA 158; also R v Ryan [2002] VSCA 176; R v Bartlett [1996] VICSC 47, [1996] 2 VR 687; R v Wilson & Grimwade [1995] 1 VR 163; R v Talia [1995] VICSC 202, [1996] 1 VR 462; Nauru v Fowler (1984) 154 CLR 627; Edwards v R (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).
Upon costs of successful appeal, see Appeal Costs Act s.14.
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 Crimes Act s.584; see R v Alexander [2006] VSCA 142, R v GAM [2005] VSCA 23.
Judge's report on appeal: Crimes Act s.573; Supreme Court (Criminal Procedure) Rules 2008. R v Ahmet [1996] VICSC 43; R v Paxton [1983] 1 VR 178.
Extension of time for appeal or leave against jury verdict of guilty, or against sentence: DPP v Hayden [2006] VSCA 152; R v Kolose [1999] VSCA 57; R v Craker [1999] VSCA 63; R v Rickard [1999] VSCA 64; DPP v Aarons [1999] VSCA 71.
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: Crimes Act s.450A. In practice, very few are brought. An example is DPP Ref No1 of 2001 [2002] VSCA 89.
Written Outlines of Arguments are required to be filed well in advance of hearing. The prosecution is required to file also Summary of Proceedings and Summary of Evidence. A transcript of the proceedings is supplied through the court registry. Affidavits are infrequently necessary, but should be filed concerning claims of fresh evidence or other factual matters in issue not sufficiently disclosed by the transcript.
Position regarding sentence if at least one conviction on indictment quashed, but not all convictions: Crimes Act s.569; RHMcL v R (2000) 203 CLR 452.
Appeal
to Court of Appeal against conviction by County Court or
Supreme Court after plea of guilty
Conviction appeal in these circumstances is open only 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: R v Scarfo [2002]
VSCA 56; R v Tait [1995]
VICSC 154, [1996] 1 VR 662; R v Parsons (1997) 97 A Crim
R 267; R v Kardogeros [1991] 1 VR 269.
Appeal
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.
Bail pending sentence appeal to Court of Appeal will ordinarily be exercised by the Court of Appeal constituted by two judges of appeal, and granted only in very exceptional circumstances: Crimes Act s.579; Re Zoudi [2006] VSCA 298; Re Schaefer [2006] VSCA 268. R v Phung [2001] VSCA 81; Re Pennant [1997] 2 VR 85
Crimes Act Part 6 especially s.567(d); s.568(4); Supreme Court (Criminal Procedure) Rules 2008. The application if by a sentenced person initially is for leave to appeal which usually is set down for a separate hearing in advance: s.582. To obtain leave, it is necessary to show at least one ground is reasonably arguable: R v Raad [2006] VSCA 67; R v Blick [1999] VSCA 211. Judge's report and extension of time are as for conviction appeals, see above.
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) 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. "Manifest excess is not to be used as an umbrella under which to shelter discrete contentions such as that the judge made a mistake as to the facts or that the sentence violates the principle of parity". Court of Appeal Practice Statement No 1 of 2000 (2000) 1 VR 196.
The remedy is re-sentence, or Crimes Act s. 568(5) remittal to the sentencing court as in R v Alexandridis [2008] VSCA 126; R v Roberts [2000] VSCA 46. Section 568(4) leaves power to re-impose the same sentence or to increase the sentence imposed: R v Tezer [2007] VSCA 123. 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: R v Cochrane [2008] VSCA 60 and R v Mourad [2008] VSCA 4 (after sentence cancellation of parole on another matter); R v McLeod [2007] VSCA 183 (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: DPP v Burgess [2000] VSCA [2001] VSCA 135, R v Mandala [1999] VSCA 159; R v Cako [2000] VSCA 147.
It seems that a finding by the Court of Appeal of need to re-sentence at least to limited extent raises opportunity for fresh evidence beyond that demonstrating the true significance of facts in existence at the time of the sentence: R v Satalich [2004] VSCA 132.
Prosecution appeals against sentence were introduced in Victoria in 1971. The main provision is Crimes Act s.567A. In Victoria, prosecution appeals against sentence have become increasingly common, especially in the last several years. Formerly it was thought the prosecution lacked function in quantity or type of sentence except to assist the court on law if necessary: cf. the neutrality in Burchielli (County Court 1977) noted in article by Rinaldi at 8 Crim. LJ 13. Authority continues to emphasises the rarity with which prosecution appeals should succeed: The cardinal rule, as repeatedly stated in the Court, is that "an appeal by the Crown should be brought only in ‘the rare and exceptional case’... to establish some point of principle": DPP v Mitchell [2006] VSCA 108; DPP v Josefski [2005] VSCA 265; DPP v Whiteside [2000] VSCA 142, (2000) 1 VR 331; R v Clarke [1996] VICSC 30, [1996] 2 VR 520; Dinsdale v R (2000) 202 CLR 321; Everett v R (1994) 181 CLR 295. For intervention by the Court, something more than manifest inadequacy in the sentence must be present, for instance that there be egregious inadequacy: DPP v Bulut [2007] VSCA 69; DPP v Adams [2006] VSCA 149; DPP v Bright [2006] VSCA 147.
Where on DPP appeal, error is demonstrated, the court has a discretion not to intervene: DPP v Leach [2003] VSCA 96. Where there is intervention, the new head sentence is discounted by reason of the double jeopardy experienced by the offender: DPP v Ellis [2005] VSCA 105.
The DPP power extends to include orders for pain and suffering: Sentencing Act s.85A-85M; DPP v Energy Brix [2006] VSCA 116.
Fresh evidence on DPP appeal: Crimes Act s.574, DPP v Burgess [2001] VSCA 135.
On DPP appeal under s.567A, the respondent appeal may apply to the Court of Appeal, and the court may grant, an indemnity certificate in respect of the respondent's own costs of the appeal. See the Appeal Costs Act s.15. This however does not apply to Commonwealth DPP appeals: DPP (Cth) v Hunter [2003] VSCA 219.
Extension of time for appeal against sentence: see above concerning appeal proceedings against conviction by jury.
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.
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) 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; Rozenes v Beljajev [1995] 1 VR 533; Coleman v DPP & County Court of Victoria [2002] VSCA 116.
One breach of natural justice is bias, actual or ostensible: R v Watson ex parte Armstrong (1976) 136 CLR 246; Livesey v NSW Bar Association (1983) 151 CLR 288; Re JRL ex parte CJL (1986) 161 CLR 342. Importance of requesting disqualification or objecting: Vakuata v R (1989) 167 CLR 568. Winningham v R (1995) 69 ALJR 775; R v Magistrates Court at Lilydale [1973] VR 122; 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; Re Refugee Tribunal: ex parte H [2001] HCA 28.
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. Regard is also to be had to Crimes Act s.455 which
states:
Presentments not to be removed by certiorari
(1) No presentment or indictment in the County Court shall be
removed by writ of certiorari into the Supreme Court.
(2) No summary conviction under this Act and no adjudication made
on appeal therefrom to the County Court shall be quashed for want
of form, or be removed by certiorari into the Supreme Court; and
no warrant of commitment shall be held void by reason of any
defect therein, provided it is therein alleged that the party has
been convicted and there is a good and valid conviction to
sustain the same.
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, in manner similar to with a s.92 appeal.
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.
Appeal
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)
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.
page
author
Don Just
barrister
of Victorian Bar
Melbourne, Victoria,
Australia
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