Appeals To The Court Of Appeal
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What is the Court of Appeal?
The Court of Appeal is a special Court that is dedicated to hearing appeals for criminal offence sentences or convictions from the Magistrates (only if the matter is heard before a Chief Magistrate), County (very limited matters can be heard) and Supreme (criminal offences Courts of Victoria. Appeals here are detailed and they involve a thorough analysis of all evidence in relation to the matter.
Who has a Legal Right to Make an Appeal?
A defendant has a right to initiate an appeal application against a sentence and/or conviction that was handed down in the Magistrates, County or Supreme Courts within 14 days of the order being made. You must first seek leave of the Court. The only exception is you cannot seek leave to appeal sentences that have been handed down by the Director of Public Prosecutions (DPP). The process you need to follow when making your application is contained in the Criminal Procedure Act 2009 (ss 274 and 278 CPA).
The prosecution (DPP) has a right to initiate an appeal (known as a Crown/Director’s appeal) against a sentence handed down to a defendant. This right cannot be abused, which helps to limit the number of appeals. They do not need to seek leave of the Court.
A party against an interlocutory decision has a right to initiate an appeal against the decision handed down by the trial judge in the County or Supreme Courts.
One judge in the Court of Appeal will decide whether or not you have been granted leave to have the matter re-determined in the Court of Appeal (s 315 CPA). Applications are not always granted, unlike appeals from the Magistrates Court to the County Court.
What Information/Documents Do I need to Gather to Make an Appeal?
A very large portfolio of information/documents need to be obtained and filed with the Court when making an application to seek leave of the Court for an appeal against a sentence and/or conviction in the Court of Appeal. Relevant information/documents for a sentence appeal may include sentencing remarks (reasons for the sentence) and for a conviction appeal may include transcripts from the Court, exhibits and information available to police and the prosecution. Applications for both sentence and conviction appeals require just as much effort and very detailed instructions.
Time Limit for Lodging an Appeal
Strict time limits apply to appeals against sentences, convictions and interlocutrices in the Court of Appeal. The defendant (or the prosecution) must file a notice of appeal in writing within 28 business days of their sentencing date (s 257 and 279 CPA) or within 2 or 10 days (depending on how far criminal proceedings have progressed and if the trial judge has approved the appeal (under ss 296(2) and 298(1) CPA) for an interlocutory appeal. The Registrar must notify the other party to the matter (the prosecution) about the notice of application within 7 days of it being filed. The prosecution has now been put on notice and has 21 days to commence preparing a response to the appeal.
Any application that is filed outside of this time by the defendant (or prosecution) will require them to make an application for an extension. The application needs to be supported with an affidavit which provides reasons as to why your application could not be filed within the 28-day timeframe. This unnecessarily makes the process much more complicated (s 313 CPA). There is no guarantee your application will be accepted by the Registrar, as you must provide a sufficient reason to the judge.
Making an Appeal Against a Conviction
If a defendant seeks to make an appeal against their conviction, they must file a notice of application for leave to appeal with the Court. It must clearly and succinctly include one of the following grounds you are relying on to challenge the conviction:
- The decision by the jury was unreasonable or was not supported by evidence
- There was a substantial irregularity, error or miscarriage of justice (like the trial judge misdirected evidence to the jury or did not correctly admit evidence)
- There was a substantial irregularity, error or miscarriage of justice for another reason (like unreliable or incompetent witnesses)
- There were exceptional circumstances that caused a substantial miscarriage of justice (if the defendant originally pleaded guilty). Exceptional circumstances include where the defendant:
- Did not appreciate the serious nature of the charges
- Would not otherwise be found guilty based on the facts of the case
- Pleaded guilty as a result of intimidation, fraud or duress
Your notice of application must also include relevant references (like binding case authorities) and supporting documentation (like affidavits and character references) you will rely on to support your appeal. For example, if you make an appeal on the ground the conviction was unreasonable (was not supported by sufficient evidence), it would be wise to include (at a minimum) transcripts from the Court.
In the event you seek leave of the Court to have more than one appeal against a conviction re-determined (s 326A CPA), the Court may grant this. However, the trial judge must be satisfied:
- It is in the interests of justice to consider ‘fresh’ and ‘compelling’ evidence (s 326C CPA) or
- There was a substantial miscarriage of justice (s 326D CPA)
Making an Appeal Against a Sentence
If a defendant seeks to make an appeal against their sentence, they must file a notice for leave to appeal with the Court. It must clearly and succinctly include a written submission outlining the grounds your appeal is being argued on and supporting arguments, relevant references (like binding case authorities and sentencing remarks) and supporting documentation (like affidavits and character references) you will rely on to support your appeal.
When deciding whether to grant leave to appeal a sentence, the judge reviews and weighs up the merits of your case – whether an error (like the original sentence was unjust, unreasonable or failed to consider sentencing factors in the CPA) was made and whether the nature and surrounding circumstances of the offending requires a different sentence than originally imposed – setting aside the original sentence, having the matter sent back to the original court for resentencing, imposing a new reduced sentence (s 281(3) and 282(1)(a) CPA) or imposing a new more severe sentence. However, the judge has a duty to warn the defendant of this, and before the new penalty is imposed, to provide the party the chance to discontinue the appeal.
Other factors the Court will consider, include:
- The maximum sentence the judge in the original court who heard the matter could have imposed
- Whether the judge in the original court who heard the matter exercised discretion in the sentence they decided to impose
- The variety of sentences handed down for similar cases
- The serious nature of the offence
- Personal circumstances surrounding the defendant
If the Court grants leave to you, they will first hear an appeal. If this hearing is accepted, a full re-trial or acquittal will then be heard. On the other hand, the Court may “apply the proviso” and dismiss the appeal (even if an irregularity or no miscarriage of justice arose in the trial).
Your Written Submission
Ensure your written arguments are very persuasive, to enable the Court to obtain the facts and issues (without oral argument) to your matter. This forms the basis for whether or not the judge chooses to grant you leave to hear the appeal.
You written submissions must be limited to 10 pages, and detail about the following:
- The sentence or conviction you seek leave to appeal
- If a sentence, include the maximum legal penalty available and other relevant legal provisions
- Summary of key facts
- Ground/s of appeal your appeal relies on
- Provide arguments (and relevant supporting references/authorities) for each ground
- The passage of transcript that is relevant to why you are appealing
DPP Making an Appeal Against a Sentence
Where the DPP appeals a sentence at the time the defendant appeals their sentence or conviction, the matters will be heard together.
The defendant is able to obtain an indemnity certificate for this appeal, which covers all reasonable costs incurred and passed on to them by their lawyer.
When the DPP makes an appeal against a sentence, often leave of the Court is not required. An appeal can be brought (and must be allowed by the Court) if it is in the interests of justice or an error of law was made such that the sentence imposed was ‘manifestly inadequate’ in the circumstances. This test is a high bar to satisfy and these appeals do not arise very frequently.
Just like the defendant, the DPP must also clearly and succinctly include a written submission outlining their grounds of appeal, arguments, relevant references (like binding case authorities and sentencing remarks) and supporting documentation (like affidavits and character references) they will rely on to support why the sentence imposed was ‘manifestly inadequate’ in the circumstances.
The County Court will refuse the appeal if they satisfy themselves there is a likely prospect a less severe sentence will be imposed or there is little prospect they would reduce the sentence (even where an error in the sentence was made and could be later corrected).
If the DPP successfully argues their case, the Court of Appeal must not apply the principles of ‘double jeopardy’ when re-sentencing the defendant. This would be unfair.
Transcripts
The Court Registry provides copies of transcripts of the charge, plea and sentencing remarks to both the defendant and the DPP during the appeal hearing and not before the written submissions are filed with the Court. Due to the number of cases the Court is hearing and limited resources, this will likely take time.
Application to Abandon an Appeal
The party who seeks to bring the appeal (whether it has been brought by an application for leave of the Court and/or extension of time) may abandon their appeal by filing a notice of abandonment to the Court of Appeal before their hearing starts (s 314 CPA). The appeal is dismissed on the day of filing the notice of abandonment.
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Contact Us
If you need to appeal to the Court of Appeal from the Magistrates, County or Supreme Court, MK Law CAN HELP.
This is a very technical area of law. If you think an injustice has occurred in your case, engage a professional with expertise who can ensure you follow the right procedure. Our team of expert appeal lawyers have years of experience and knowledge discussing errors in the sentencing process with clients, scrutinising evidence, weighing up individual cases and deciding whether to initiate an appeal to the Court of Appeal. We engage and instruct Victoria’s best barristers to defend a number of vast and complex sentence and conviction appeals for murder, jury and sexual offences.
It is recommended you engage different lawyers from the lawyers you engaged when you originally entered your plea. The main reason for this is because it is difficult to be objective about something a person has already done.
Engage us as soon as possible and before you receive the transcripts. We are available for free legal advice 24/7 on 1800 130 120 or at marcus.mklawfirm.com.au to help you understand the appeals process and the time limits you need to strictly adhere to. We often have clients coming to us to assist them with the appeal process following unsuccessful attempts by another law firm.
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