What do I need to know?
What is a
Royal Commission?
Preparation
A Guide to Appeals
Against Conviction and Sentence
Pathways
to Appeal
Process
defence lawyers
defence lawyers
Written by Josh Taaffe
and Bill Doogue
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Criminal Appeals in Victoria, Australia: From Magistrates' Court to High Court, Slides of Law
An overview of the criminal appeals process in Victoria, Australia. It covers appeals from the Magistrates' Court to the County Court, the role of defense lawyers, and the different grounds for appeal in the Court of Appeal and the High Court. It also discusses time limits and the importance of seeking expert advice.
What you will learn
- What are the grounds for appealing a conviction in the Court of Appeal?
- What is the role of defense lawyers in criminal appeals?
- What is the process for appealing a sentence in the High Court?
Typology: Slides
2021/2022
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What do I need to know?
What is a
Royal Commission?
Preparation
A Guide to Appeals
Against Conviction and Sentence
Pathways
to Appeal
Process
d e f e n c e l a w y e r s
Written by Josh Taaffe
and Bill Doogue
Index
Introduction
The Authors
Appeals from the Magistrates’ Court of Victoria
to the County Court
Sentence Appeals from the Magistrates’ Court
Conviction Appeals to the County Court from the Magistrates’ Court
County Court Appeals
Considering an Appeal against Conviction or Sentence
Appeals from Judges in the County Court
Common Elements and The Need for Forensic Error
Appeal Against Conviction in the Court of Appeal –
Three Possible Pathways
Appeal Against Sentence in the Court of Appeal –
Error or Manifest Excess
Appeal Against Conviction and / or Sentence Time Lines
What do You Want Your Lawyers to do in a Court of Appeal Case?
Appeal from the Court of Appeal to the High Court of Australia
9 Application for Special Leave to Appeal 9 The Appeal
d e f e n c e l a w y e r s d e f e n c e l a w y e r s
d e f e n c e l a w y e r s d e f e n c e l a w y e r s Appeals from the Magistrates’ Court of Victoria to the County Court An accused person in a criminal case can appeal any decision a Magistrate has made to the County Court. Those people convicted and sentenced for criminal offences in the summary jurisdiction of the Magistrates’ Court have a right to appeal against both their conviction and/or sentence. This appeal is to the County Court of Victoria. An appeal is commenced by filing a notice of appeal at the Magistrate’s Court within 28 days of sentence. In Victoria, most offences are dealt with in the Magistrates’ Court. Even many very serious crimes are capable of being heard by the Magistrates’ Court. The reason for this, is so that cases can be dealt with more efficiently and with less expense. The Magistrate’s Court is able to deal with a greater volume of work and with less delay than if all of these cases were dealt with by judge and jury.
Sentence Appeals from the Magistrates’ Court On the hearing of the appeal, the County Court must set aside the sentence of the Magistrates’ Court. They may impose any sentence which the County Court considers appropriate and which the Magistrates’ Court imposed or could have imposed. They may exercise any power which the Magistrates’ Court exercised or could have exercised. The County Court must impose the sentence which it considers appropriate. This means that it is possible for the County Court to impose a more severe sentence than what was imposed in the Magistrates’ Court. If the County Court Judge is considering imposing a more severe sentence then the Judge must warn the appellant that the Court may impose a more severe sentence. This warning must be given when the Judge considers that an increased sentence is a “practical possibility” in the particular case, rather than the theoretical possibility that exists in all cases. The obligation is triggered when the Judge becomes aware of the real possibility of imposing a more severe sentence. This will often occur early in the appeal when the Judge hears the prosecution summary. At this stage an appellant must consider whether to continue with the appeal and risk the imposition of a more serious sentence or to abandon the appeal. Generally a lawyer will have instructions from their client in advance that if they are warned about being “upped” (i.e. having their sentence increased) that they will abandon the appeal. Therefore, giving the Judge a reason to impose the same penalty as had been imposed by the Magistrate. Conviction Appeals to the County Court from the Magistrates’ Court The prosecution present their case first and again carry the burden of proving their case beyond reasonable doubt. The witnesses have to come and give evidence again. A party could change the way it defends a case or call new witnesses. In addition, the matter is determined on the law as it stands at the date of the appeal. d e f e n c e l a w y e r s d e f e n c e l a w y e r s County Court Appeals Appeals to the County Court are called “hearing de novo” appeals, meaning that there is a new hearing of the case again. The offender is not bound by his or her plea in the Magistrates’ Court and the County Court judge must hear and determine the matter again. The appellant does not need to show that the decision below was affected by error like it does with appeals to the Court of Appeal. County Court appeals serve an important function, giving an accused a second chance where he or she feels that the wrong result was arrived at in the Magistrates’ Court. This wrong result may be that you were convicted when you should not have been or that you received a more severe sentence than was appropriate. So how that sometimes works to the advantage of the appellant (and the community) is that on a plea in mitigation of sentence, the appellant may present further evidence of rehabilitation between the date of the Magistrates’ Court hearing and the date of the appeal.
Appeal Against Conviction in the Court of Appeal – Three Possible Pathways The jurisdiction – or to put it in another way, the powers of the Court of Appeal – to overturn an appeal against conviction can occur in three situations.
1. The verdict is unreasonable or cannot be supported having regard to the evidence. When this ground is argued on appeal, an Appellate Court is required to consider all the evidence that was produced at trial and to conduct an independent review of the nature and quality of the evidence to determine whether, in fact, the verdict is unsafe. It is important to note that success on this ground will pivot on whether the Court of Appeal finds that the jury should have had a reasonable doubt as to the guilt of the accused. It is not simply that the jury could have had a doubt about the guilt of the accused. As such, the Court of Appeal gives great weight to the verdict of the jury. It is only when because the quality of the evidence is so poor or where there is a real and clear problem with a verdict of guilt that the court will intervene and set the conviction aside. If you are successful appealing on the basis that the verdict was unreasonable or unsupported by the evidence the Court will enter an acquittal (i.e. a finding of not guilty). 2. Where there has been some error or irregularity in the trial that has resulted in a substantial miscarriage of justice. An ‘error’ or ‘irregularity’ in the trial can arise in numerous ways. Some of the most common ways it arises is by the wrongful admission of evidence or misdirection of the jury by the trial judge. This ground can include misconduct by a jury or juror. The appeal may be based on a failure to discharge the jury because of something that has occurred during the trial. It can also include failure to give directions that are favourable to the accused. An example is the failure to give a good character direction when an accused is entitled to that direction of law. In successfully arguing this ground of appeal it is necessary to establish that the ‘error’ or ‘irregularity’ has actually caused a ‘substantial miscarriage of justice’. That is, that the error or irregularity complained of is of such importance that is has caused a substantial miscarriage of justice. Success on this ground of appeal will ordinarily lead to a retrial being ordered. A bail application would then be considered if a client is in custody because of the verdict. 3. For any other reason there has been a substantial miscarriage of justice. This is a category that covers all other possibilities that may arise in the course of a criminal trial but do not ‘fit’ within the above grounds of appeal. Examples may include incompetence of trial counsel and completely over the top comments by a prosecutor in the opening or closing address. Or it may be because of a ‘combination of errors’ that occurred in the trial process that the verdict should not be permitted to stand. In short, anything that has deprived an accused person of a fair trial and resulted in a substantial miscarriage of justice. Again, like the second category, success on this ground would ordinarily lead to an order for a retrial. Appeal Against Sentence in the Court of Appeal – Error or Manifest Excess Any person who lodges an appeal against sentence is required to seek leave from the Court of Appeal to have the appeal heard and determined by that Court. That leave is dependent on the Court coming to the view that a different and less severe sentence is warranted in all of the circumstances of the offence and the offender. i.e. there has been a forensic error. d e f e n c e l a w y e r s d e f e n c e l a w y e r s
d e f e n c e l a w y e r s d e f e n c e l a w y e r s The establishment of forensic error in an appeal against sentence typically occurs in two ways.
1. That there has been some error in the conducting of the sentencing process and the sentence produced is too severe as a result. Some examples include a sentencing judge failing to have regard to relevant considerations or – the opposite – having regard to irrelevant considerations. It may arise because of a sentencing judge not according procedural fairness or the admission into the sentencing of inadmissible evidence. Or it may arise because a sentencing Judge fails to accept that a matter is mitigating (i.e. should lessen penalty) or treating a matter as aggravating (i.e. should increase penalty) when, in fact, it was not. 2. And the most common ground of appeal against sentence – is that the sentence imposed is manifestly excessive. The phrase manifest excess expresses a conclusion, i.e. that the sentence was obviously excessive. In essence, it is stating the proposition that given all the circumstances of the offence and the personal circumstances of the offender the sentence is simply wrong. Or to explain it another way, manifest excess is a submission that it was simply not open for the sentencing judge to impose the sentence that they did. Appeal Against Conviction and / or Sentence Time Lines To appeal against conviction and / or sentence an applicant must follow strict time limits. Both appeals against conviction and sentence must be filed within 28 days from the date of sentence. That requires that the Notice of Appeal containing the Grounds of Appeal is to be filed along with the Written Case within that time frame. The Written Case is the document that sets out the arguments that will be relied upon to establish the Grounds of Appeal as set out in the Notice of Appeal. The Written Case is a complex document which relies on your lawyers having read all the transcripts of the trial or sentence. They will also need to have all your instructions about what you believe went wrong. The Court of Appeal can in certain circumstances extend time to lodge those documents but that only occur in unusual circumstances and will require a detailed explanation from the applicant why that has occurred. What do You Want Your Lawyers to do in a Court of Appeal Case? 1. Get all necessary material together as soon as possible. 2. Read material and make assessment of it. 3. Arrange Appellate Counsel (i.e. barristers who specialise in these appeals). 4. You would want advice as to whether a written case should be filed and what grounds of appeal are. 5. Give you honest advice as to any appeal points that might be successful. Your lawyers should be able to explain those appeal points to you in simple language and explain their chances of success. Appeal from the Court of Appeal to the High Court of Australia Criminal appeals from the Victorian Court of Appeal to the High Court of Australia (“the High Court”) are very rare. There are two stages: 1. Application for special leave to appeal. 2. The appeal.