Criminal appeals and reviews in Victoria 9780455237619, 0455237611

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Criminal Appeals & Reviews in Victoria

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] legal.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS

NORTH AMERICA Thomson Reuters Eagan United States of America

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EUROPE Thomson Reuters London United Kingdom

Criminal Appeals & Reviews in Victoria CHRISTOPHER CORNS BA (Hons) (Melb); LLB (Melb); LLM (Mon); Phd (Mon)

Barrister and Solicitor of theSupreme Court of Victoria Honorary Associate Professor, LaTrobe University

SUSAN BORĠ LLB (Tas)

Barrister-at-Law (Vic) Crown Prosecutor, Office of Public Prosecutions

ADRIAN CASTLE BA, LLB (Melb)

Barrister and Solicitor of the Supreme Court of Victoria Principal Solicitor, Office of Public Prosecutions

LAWBOOK CO. 2017

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry Creator: Corns, Christopher Thomas, 1950– author. Title: Criminal appeals and reviews in Victoria / Christopher Corns ; Susan Borġ; Adrian Castle. Notes: Includes index. ISBN: 9780455237619 (paperback) Subjects: Appellate procedure--Victoria. Criminal procedure--Victoria. Justice, Administration of--Victoria. Other Creators/Contributors: Borġ, Susan, author. Castle, Adrian, author. 347.94508 © 2017 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Copyright of Cth legislative material: All Commonwealth legislative material is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. For reproduction or publication beyond that permitted by the Copyright Act 1968 (Cth), permission should be sought in writing from the current Commonwealth Government agency with the relevant policy responsibility DISCLAIMER: This product or service contains an unofficial version of the Acts and Statutory Rules of the State of Victoria. The State of Victoria accepts no responsibility for the accuracy, completeness or currency of any legislation contained in this product or provided through this service. Editors: Lara Weeks and Merilyn Shields Product Developer: Paul Gye Publisher: Anne Murphy Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://www.pefc.org

Foreword The Hon Justice Chris Maxwell AC President of the Victorian Court of Appeal

Criminal appeals account for two-thirds of the work of the Court of Appeal. And, as this book demonstrates, the Supreme Court and the County Court also have key criminal appeal and review functions. In short, criminal appeals are at the very heart of Victoria’s justice system. This is as it should be, given that the principles of criminal justice embody fundamental human rights conceptions – the presumption of innocence and the right to a fair trial. In Victoria, of course, those rights are now enshrined in the Charter of Human Rights and Responsibilities, to which this book devotes a separate chapter. This new work is of very great importance. It will assist both the experienced practitioner and the newcomer to navigate through the appeals system: to identify the appropriate appeal mechanism; to locate the procedural requirements; and to prepare the necessary documentation. The structure of the book exposes very clearly the architecture of criminal appeals and reviews, jurisdiction by jurisdiction. Its content is comprehensive and thorough. Significant recent developments – the procedural reforms in the Court of Appeal, the introduction of interlocutory appeals and the enactment of the Jury Directions Acts – are all fully covered. This is a practical guide, firmly grounded in history and principle. It presents, in accessible form, all of the applicable statutory provisions, court rules and statements of practice, as well as a helpful survey of relevant case law. Given the ever-growing body of criminal appeal jurisprudence, it is especially important to have the leading cases identified and summarised. I congratulate the authors on their industry and learning, and on recognising the need for a work of this kind.

Preface This book began life as a draft manuscript submitted by Chris Corns to the publishers, Thomson Reuters, in 2014. Fortunately, that manuscript was reviewed by Tom Gyorffy QC who at that time was a Crown Prosecutor with the Office of Public Prosecutions in Victoria. Drawing on his immense experience as a trial and appellate advocate, Tom’s suggestions completely reshaped the proposal from an academic treatise to a “hands-on” practical guide for legal practitioners (and others). It is at this point that Tom suggested the involvement of Susan Borġ (Crown Prosecutor) and Adrian Castle (Principal Solicitor within the Office of Public Prosecutions). Tom subsequently reviewed draft chapters and provided further invaluable advice. We are indebted to Tom for his insights and significant contribution. The importance of criminal appeals and reviews can hardly be overstated. Appeals and reviews serve to: identify and correct miscarriages of justice (for both the accused person and the Crown); supervise the lowers courts; enhance consistency and clarity of the criminal law; and more generally, enhance public confidence in the administration of criminal justice. Appeals and reviews thus serve important public as well as private interests. In Victoria the law regarding criminal appeals and reviews has undergone significant reforms in recent years, and continues to be reformed. With the enactment of the Criminal Procedure Act 2009 (Vic) the legislature has rewritten the fundamental statutory provisions governing criminal appeals, resulting in greater clarity, simplicity, and consistency. One particular reform in the Criminal Procedure Act 2009 (Vic) is the abandonment of the problematic “proviso,” which still applies in all other jurisdictions in Australia, and its replacement with a simpler statement of the grounds upon which an appeal against conviction can be upheld. Apart from legislative reforms, the appellate courts themselves have also engaged in significant reforms. Specifically, the Victorian Court of Appeal has developed and implemented critical new Practice Directions and Rules of Court relating to conviction and sentence appeals, and to interlocutory appeals. The Supreme Court has also reformed Practice Directions and Rules of Court in its civil jurisdiction relating to judicial review and appeals on a question of law. The effect of these reforms has been to create a unique set of appellate laws and procedures in Victoria. For these reasons the authors believe a specialist text on all aspects of criminal appeals and reviews in Victoria is justified.

viii Preface

The purpose of the book is to provide a comprehensive and concise account of all criminal appeals and reviews in Victoria. Each chapter is devoted to appeal and review rights for each of the courts in Victoria, including the Federal Court of Australia and the High Court. For each court, the book sets out the foundation statutory rights and procedures, the applicable Rules of Court and Practice Directions which provide more detailed guidance (relating to drafting of grounds of appeal, service, and time limits), and applicable case law. The case law sets out how appellate courts have interpreted the relevant legislative provisions and the approach taken to various types of appeal such as interlocutory appeals. This book thus provides a “one-stop-shop” to guide practitioners through all the available appeals and reviews, step by step. The book combines the knowledge of an experienced trial and appellate Crown Prosecutor, Susan Borġ; the knowledge of an experienced Principal Solicitor within the Office of Public Prosecutions, Adrian Castle, who has particular expertise in judicial review and appealing questions of law; and the knowledge of an experienced legal academic, Chris Corns, who has taught law students for over thirty years. Whilst each chapter has been reviewed by all the authors, Adrian Castle is responsible for chapter 7, Susan Borġ for chapters 2 (co-authored with Chris Corns) and 10, and Chris Corns is also responsible for chapter 2 (co-authored with Susan Borġ) and the remaining chapters. We are however collectively responsible for any errors of law or fact. We would like to thank Paul Gye, product developer at Thomson Reuters, for his support and enthusiasm throughout this project. We are also very appreciative of the work of Lara Weeks at Thomson Reuters. Lara was responsible for the final production stages of the book, particularly the editing of all chapters. We thank the Honourable President Maxwell AC, President of the Victorian Court of Appeal, for his detailed commentary on early drafts of the chapters and agreeing to write the Foreword. We thank the Victorian Attorney General the Honourable Martin Pakula MP for providing information in respect to the petition for mercy procedure. Thanks also to the Honourable Justice Redlich for his assistance and comments. Thanks to Gavin Silbert QC, the Victorian Chief Crown Prosecutor for his comments on appellate advocacy; thanks to David Grace QC for reviewing chapter 9; Adriaan Bendeler (who was the librarian and is now retired) and Tracey Archer (who then was the Assistant Librarian and now Library Manager) at the Office of Public Prosecutions, for proof reading and checking citations for chapters 2, 7 and 10, and thanks to Cassandra Keen (K and L Gates) for checking case citations for a number of chapters. Shannon Cuthbertson, Deputy General Counsel (Operations and CT) Australian Federal

Preface ix

Police, and David Reed, Director, Litigation, International Crime Cooperation Authority, Commonwealth Attorney-General’s Department provided invaluable comments regarding appeals in international extradition proceedings, discussed in chapter 8. The law is stated as at 31 August 2016. CHRIS CORNS SUSAN BORĠ ADRIAN CASTLE October 2016 When conducting an appeal or review proceeding in any of the courts in Victoria it is important for practitioners to check (on the relevant court’s website or other authoritative source) for the latest Practice Notes or Practice Directions which set out the correct procedure to be followed.

Brief Table of Contents Foreword ................................................................................................................................................. v Preface .................................................................................................................................................. vii Table of Contents ................................................................................................................................. xiii Table of Cases ................................................................................................................................... xxxi Table of Statutes .................................................................................................................................. xlv Introduction ........................................................................................................................................... 1 Chapter 1: History and Development of Appeals in Victoria ...................................................... 15 Chapter 2: The Charter of Human Rights and Responsibilities Act 2006 (Vic) ....................... 67 Chapter 3: Appeal and Other Applications from the Children’s Court of Victoria ............... 111 Chapter 4: Appeals and Other Applications from the Magistrates’ Court of Victoria .......... 143 Chapter 5: Appeals against Interlocutory Decisions ................................................................... 185 Chapter 6: Appeal and other Applications from Trials on Indictment ..................................... 217 Chapter 7: Appeals from the Magistrates’ Court on a Question of Law and Judicial Reviews of Magistrates’ Court and County Court decisions ............................. 365 Chapter 8: Appeals to the Federal Court of Australia ................................................................ 413 Chapter 9: Appeals to the High Court .......................................................................................... 441 Chapter 10: Appellate Advocacy .................................................................................................... 479 Bibliography ....................................................................................................................................... 519 Index ................................................................................................................................................... 525

Table of Contents Foreword ................................................................................................................................................. v Preface .................................................................................................................................................. vii Brief Table of Contents ........................................................................................................................ xi Table of Cases ................................................................................................................................... xxxi Table of Statutes .................................................................................................................................. xlv Introduction ........................................................................................................................................... 1 Chapter 1: History and Development of Appeals in Victoria ...................................................... 15 [1.10] Introduction .............................................................................................................................. 15 [1.20] Importance of criminal appeals ............................................................................................... 15 [1.30] Justification for having an appellate process .......................................................................... 16 [1.40] History ...................................................................................................................................... 18 [1.50] The prerogative writs ......................................................................................................... 18 [1.100] The Supreme Court Act 1986: Amalgamation of the prerogative writs ....................... 24 [1.110] Modern statutory changes to the prerogative writs ........................................................ 26 [1.730] The Ashley-Venne reforms: 2011 .................................................................................... 47 [1.780] Reform of double jeopardy: 2011 ......................................................................................... 52 [1.790] Categorising criminal appeals ............................................................................................... 52 [1.810] Statutory appeal rights ..................................................................................................... 53 [1.860] DPP reference .................................................................................................................. 55 [1.870] Overview of Victorian court structure .................................................................................. 55 [1.880] Flowchart 1.1: Court structure ........................................................................................ 56 [1.890] Appealing a discretionary decision: House v The King ...................................................... 58 [1.900] Role of DPP in criminal appeals .......................................................................................... 59 [1.910] Appeals in federal criminal matters ...................................................................................... 60 [1.920] Interventions ........................................................................................................................... 62 [1.930] Some decisions which cannot be appealed ........................................................................... 62 [1.940] Prosecution decisions made by the DPP ........................................................................ 62 [1.950] Decisions made at a committal ....................................................................................... 63 [1.960] People prohibited from appealing criminal matters ............................................................. 63 [1.970] Vexatious litigants ............................................................................................................ 63 [1.980] Fugitives ........................................................................................................................... 64 [1.990] Petition of mercy ................................................................................................................... 64 Chapter 2: The Charter of Human Rights and Responsibilities Act 2006 (Vic) ....................... 67 [2.10] Introduction .............................................................................................................................. 68

xiv Table of Contents [2.20] PART ONE: GENERAL FEATURES OF THE CHARTER ................................................. 71 [2.20] Commencement ....................................................................................................................... 71 [2.30] Purpose of the Charter ............................................................................................................. 71 [2.40] Application of the Charter ....................................................................................................... 72 [2.50] Public authority ........................................................................................................................ 73 [2.60] Rights protected by the Charter .............................................................................................. 75 [2.70] Limitations of the rights .......................................................................................................... 76 [2.80] Breach of the Charter .............................................................................................................. 77 [2.90] The 2015 Review and ss 38 and 39 ................................................................................. 78 [2.100] The interpretive obligations of courts under the Charter ..................................................... 79 [2.110] Momcilovic v The Queen ................................................................................................ 80 [2.120] Momcilovic v The Queen: The decision of the Victorian Court of Appeal ................. 81 [2.130] Momcilovic: The High Court decision ........................................................................... 82 [2.140] The 2015 Review and ss 32 and 7 ................................................................................. 83 [2.150] Declaration of inconsistent interpretation ............................................................................. 84 [2.160] Referral of a question of law to the Supreme Court ........................................................... 85 [2.170] The right to appeal as a substantive human right ................................................................ 86 [2.180] PART 2: HOW THE CHARTER HAS BEEN ENGAGED IN CRIMINAL APPEALS AND REVIEWS ................................................................................................. 87 [2.180] Introduction ............................................................................................................................ 87 [2.190] The Charter and interlocutory appeals .................................................................................. 88 [2.200] Bail ......................................................................................................................................... 88 [2.210] Freedom of expression .......................................................................................................... 91 [2.220] Acting in a way incompatible with a human right: s 38(1) ................................................ 91 [2.230] Rights in criminal proceedings ............................................................................................. 93 [2.230] Right to legal assistance .................................................................................................. 93 [2.260] Right to privacy ..................................................................................................................... 98 [2.270] Right to freedom of movement ........................................................................................... 100 [2.280] Right to a fair hearing ......................................................................................................... 102 [2.290] Taha v Broadmeadows Magistrates’ Court ................................................................... 103 [2.300] Rich v The Queen ......................................................................................................... 104 [2.310] Re an application under the Major Crime (Investigative Powers) Act 2004 (Vic) .... 105 [2.320] CONCLUSION .................................................................................................................... 107 Chapter 3: Appeal and Other Applications from the Children’s Court of Victoria ............... 111 [3.10] Introduction ............................................................................................................................ 111 [3.20] Criminal jurisdiction of the Children’s Court ...................................................................... 112 [3.30] The right to appeal conviction and sentence ........................................................................ 113 [3.40] What is a conviction? ............................................................................................................ 114 [3.50] What is a sentence? ............................................................................................................... 114

xv [3.60] Nature of the appeal hearing ................................................................................................. 114 [3.70] Disposition powers of the appellate court ............................................................................ 115 [3.80] Disposition powers on appeals against orders for undertakings, bonds etc ........................ 115 [3.90] Unfitness to stand trial ........................................................................................................... 116 [3.100] Right to appeal finding of unfitness to stand trial .............................................................. 117 [3.110] Test for determining appeal against finding of unfitness ............................................. 117 [3.120] Disposition powers if appeal successful ....................................................................... 117 [3.130] Procedure for appeal against finding of unfitness ........................................................ 118 [3.140] Defence of mental impairment ............................................................................................ 118 [3.150] Right to appeal finding of mental impairment ............................................................. 118 [3.160] Test for determining appeal against finding of mental impairment ............................. 119 [3.170] Disposition powers on hearing appeal .......................................................................... 119 [3.180] Appeal supervision order ..................................................................................................... 119 [3.190] Appeal against unconditional release .................................................................................. 120 [3.200] Rehearing based on absence of accused ............................................................................. 120 [3.210] Procedure on appeal against conviction or sentence .......................................................... 121 [3.220] Notice of appeal ............................................................................................................. 121 [3.230] Service of notice of appeal ........................................................................................... 122 [3.240] Appeal out of time ......................................................................................................... 122 [3.250] Bail pending appeal ....................................................................................................... 123 [3.260] Further application for bail where bail refused or revoked ......................................... 123 [3.270] Appeal to Supreme Court against refusal of bail ......................................................... 124 [3.280] Application for variation of bail ................................................................................... 125 [3.290] DPP may appeal against decision to grant bail ............................................................ 125 [3.300] Revocation of bail ......................................................................................................... 126 [3.310] Warning the appellant and abandonment of appeal ........................................................... 126 [3.320] Post-appeal notification ....................................................................................................... 127 [3.330] Stay pending appeal ............................................................................................................. 127 [3.340] Appeal abandoned ............................................................................................................... 127 [3.350] Failure to appear .................................................................................................................. 128 [3.360] Pre-sentence reports ............................................................................................................. 128 [3.370] Appeal to Court of Appeal against imposition of detention by appellate court ............... 129 [3.370] Right to appeal ............................................................................................................... 129 [3.380] Test to determine appeal under s 430R ........................................................................ 129 [3.390] Bail pending appeal under s 430R ................................................................................ 130 [3.400] Disposition powers on appeal under s 430R ................................................................ 130 [3.410] Case stated by County Court on appeal ............................................................................. 130 [3.420] Refusal to reserve a question of law ............................................................................ 131

xvi Table of Contents [3.430] The appellate court states a case ................................................................................... 131 [3.440] DPP reference to Court of Appeal ...................................................................................... 131 [3.450] DPP appeals against leniency of sentence .......................................................................... 132 [3.450] Right to appeal ............................................................................................................... 132 [3.460] Who is the appellant? .................................................................................................... 133 [3.470] Disposition powers on an appeal under s 427 ............................................................. 133 [3.480] Procedure on DPP appeal .............................................................................................. 133 [3.500] Nature of the appeal hearing ......................................................................................... 134 [3.510] DPP appeal sentence: breach of undertaking to assist authorities ..................................... 134 [3.510] Right to appeal ............................................................................................................... 134 [3.520] Nature of the appeal under s 429A ............................................................................... 134 [3.530] Disposition powers on appeal under s 429A ................................................................ 135 [3.540] Procedure on appeal under s 429A ............................................................................... 135 [3.550] Respondent fails to appear at appeal ............................................................................ 136 [3.560] Recording and notification of result of appeal ............................................................. 136 [3.570] Appeal to Supreme Court on a question of law ................................................................. 136 [3.580] Judicial review ..................................................................................................................... 136 [3.590] Costs ..................................................................................................................................... 137 [3.600] Sample forms ....................................................................................................................... 138 Chapter 4: Appeals and Other Applications from the Magistrates’ Court of Victoria .......... 143 [4.10] Introduction ............................................................................................................................ 143 [4.20] Criminal jurisdiction of Magistrates’ Court ......................................................................... 144 [4.30] Right to appeal conviction and sentence .............................................................................. 144 [4.40] What is a conviction? ............................................................................................................ 145 [4.50] What is a sentence? ............................................................................................................... 145 [4.60] Nature of the appeal hearing ................................................................................................. 145 [4.70] Disposition powers of the County Court .............................................................................. 146 [4.80] Defence of mental impairment and unfitness to stand trial ................................................. 147 [4.90] Rehearing based on absence of accused ............................................................................... 148 [4.100] Application for rehearing: procedure ............................................................................ 149 [4.110] Appeals from decisions of judicial registrar ....................................................................... 150 [4.120] Appeal against sentence to koori court division of County Court .................................... 151 [4.130] Appeal against conviction or sentence under section 254: procedure ............................... 152 [4.140] Notice of appeal ............................................................................................................. 153 [4.150] Service of notice of appeal ........................................................................................... 154 [4.160] Appeal out of time ......................................................................................................... 154 [4.170] Bail pending appeal ....................................................................................................... 155 [4.180] Further application for bail where bail refused or revoked ......................................... 156

xvii [4.230] Warning appellant and abandonment of appeal .................................................................. 159 [4.240] Stay of proceedings pending appeal ................................................................................... 160 [4.250] Abandonment of appeal prior to hearing ............................................................................ 160 [4.260] Failure to appear .................................................................................................................. 161 [4.270] Appeal against imposition of detention by County Court ................................................. 161 [4.270] Right to apply for leave to appeal ................................................................................ 161 [4.280] Test for application for leave to appeal under CPA s 283 ........................................... 162 [4.290] Test to determine appeal under CPA s 283 .................................................................. 162 [4.300] Orders on successful appeal under CPA s 283 ............................................................. 163 [4.310] Procedure on appeal under CPA s 283 ......................................................................... 163 [4.320] Appealing out of time under CPA s 283(2) .................................................................. 163 [4.330] Case stated by County Court on appeal ............................................................................. 164 [4.340] Refusal to reserve question of law ............................................................................... 164 [4.350] County Court states a case ............................................................................................ 164 [4.360] DPP reference to Court of Appeal ...................................................................................... 165 [4.370] DPP appeals against leniency of sentence .......................................................................... 165 [4.370] Right to appeal ............................................................................................................... 165 [4.380] Who is the appellant? .................................................................................................... 166 [4.390] Disposition powers on appeal under s 257 ................................................................... 166 [4.400] Procedure on DPP appeal .............................................................................................. 166 [4.420] Nature of the appeal hearing ......................................................................................... 167 [4.430] DPP appeal sentence: breach of undertaking to assist authorities ..................................... 167 [4.430] Right to appeal under CPA s 260 ................................................................................. 167 [4.440] Nature of appeal under CPA s 260 ............................................................................... 168 [4.450] Disposition powers on appeal under s 260 ................................................................... 168 [4.460] Procedure on appeal under CPA s 260 ......................................................................... 168 [4.470] Respondent fails to appear at appeal ............................................................................ 169 [4.480] Appeal to Supreme Court on a question of law ................................................................. 169 [4.490] Judicial review ..................................................................................................................... 170 [4.500] Costs on appeal .................................................................................................................... 171 [4.510] Sample forms ....................................................................................................................... 171 Chapter 5: Appeals against Interlocutory Decisions ................................................................... 185 [5.10] Introduction ............................................................................................................................ 185 [5.20] Right to appeal interlocutory decision .................................................................................. 186 [5.30] Who can appeal? ................................................................................................................... 187 [5.40] What is an interlocutory decision? ....................................................................................... 187 [5.50] Is a decision to uphold a no case submission an interlocutory decision? ........................... 188 [5.60] Initial contact with registry of Court of Appeal ................................................................... 188

xviii Table of Contents [5.70] Certification by trial judge .................................................................................................... 189 [5.80] General principles applicable to certification decision ................................................... 189 [5.90] Decisions ruling evidence inadmissible: s 295(3)(a) ..................................................... 190 [5.100] Decisions otherwise of sufficient importance: s 295(3)(b) .......................................... 191 [5.110] Certification refused ....................................................................................................... 192 [5.120] Certification granted ...................................................................................................... 192 [5.130] Test to determine application for leave to appeal .............................................................. 192 [5.140] Leave granted ................................................................................................................. 193 [5.150] Leave refused ................................................................................................................. 193 [5.160] Refusal of leave not to preclude further appeal ........................................................... 193 [5.170] Test to determine appeal ..................................................................................................... 194 [5.180] Orders available on successful appeal ................................................................................ 195 [5.190] Urgent interlocutory appeal ................................................................................................. 195 [5.200] What happens if trial judge refuses to certify? .................................................................. 195 [5.200] Right to apply for review of refusal ............................................................................. 195 [5.210] Procedure on application for review ............................................................................. 196 [5.290] Procedure on application for leave to appeal interlocutory decision ................................ 198 [5.300] Notice of application for leave to appeal ........................................................................... 200 [5.310] Summary of contentions ...................................................................................................... 200 [5.320] Affidavit in support .............................................................................................................. 201 [5.330] Who determines application for leave to appeal? .............................................................. 201 [5.340] Time limits on application for leave ................................................................................... 201 [5.350] Application to apply out of time ......................................................................................... 201 [5.360] Service of notice of application for leave .......................................................................... 202 [5.370] Role of registrar ................................................................................................................... 202 [5.380] Hearing of application for leave to appeal ......................................................................... 202 [5.390] Nature of appellate review of interlocutory decision compared to final appellate review of conviction ...................................................................................... 202 [5.400] Can leave to appeal be granted when trial judge has correctly refused to certify under s 395(3)? .................................................................................................. 203 [5.410] General principles on applications for leave to appeal ................................................ 204 [5.420] Leave refused ................................................................................................................. 205 [5.430] Leave granted ................................................................................................................. 205 [5.440] Hearing of the appeal .......................................................................................................... 205 [5.440] Hearing based on evidence at trial ............................................................................... 205 [5.450] General principles on appeal ......................................................................................... 205 [5.460] Appeal abandoned ............................................................................................................... 206 [5.470] Costs ..................................................................................................................................... 206 [5.480] Post-appeal procedures ........................................................................................................ 207

xix [5.490] Sample forms ....................................................................................................................... 207 Chapter 6: Appeal and other Applications from Trials on Indictment ..................................... 217 [6.10] Introduction ............................................................................................................................ 218 [6.20] PART A: APPEALS AGAINST CONVICTION .................................................................. 218 [6.20] The right to appeal conviction .............................................................................................. 218 [6.30] Who can appeal conviction? ................................................................................................. 218 [6.40] What is a conviction? ............................................................................................................ 219 [6.50] Can an appeal be brought before a sentence is passed? ...................................................... 219 [6.60] Can an appeal against conviction be brought after a plea of guilty? .................................. 220 [6.70] Grounds of appeal against conviction ................................................................................... 221 [6.80] Grounds for upholding an appeal against conviction ........................................................... 222 [6.90] Unsafe and unsatisfactory verdict: CPA s 276(1)(a) ...................................................... 222 [6.100] Inconsistent verdicts ...................................................................................................... 226 [6.110] Error or irregularity: CPA s 276(1)(b) .......................................................................... 228 [6.140] Conviction appeals under CPA s 276(1)(c) .................................................................. 234 [6.150] Fresh evidence on an appeal against conviction ................................................................ 234 [6.160] Orders available to the Court on conviction appeal: CPA s 277 ....................................... 236 [6.170] New trial or verdict of acquittal ................................................................................... 237 [6.180] Conviction of alternative offence .................................................................................. 238 [6.190] New trial for alternative offence ................................................................................... 238 [6.200] Substitute verdict of not guilty because of mental impairment ................................... 239 [6.210] Substitute verdict of not guilty of alternative offence because of mental impairment ......................................................................................................... 239 [6.220] Order attendance of appellant for new trial ................................................................. 239 [6.230] Resentence for related offence ...................................................................................... 239 [6.240] Resentence for other offences ....................................................................................... 240 [6.250] Appeal against finding of unfitness to stand trial ............................................................... 240 [6.250] Jurisdiction ..................................................................................................................... 240 [6.260] Procedure ....................................................................................................................... 241 [6.270] Test for determining appeal ........................................................................................... 241 [6.280] Powers of Court of Appeal if appeal upheld ................................................................ 242 [6.290] Appeal against verdict of not guilty because of mental impairment ................................. 243 [6.300] Test for determining appeal ........................................................................................... 244 [6.310] Powers of Court of Appeal if appeal upheld ................................................................ 244 [6.320] Other appeals under the CMIUTA ...................................................................................... 245 [6.320] DPP appeal against unconditional release .................................................................... 245 [6.330] Appeal against supervision order .................................................................................. 245 [6.340] Appeal against revocation of non-custodial supervision order .................................... 246

xx Table of Contents [6.350] Procedure on conviction appeals ......................................................................................... 246 [6.360] Flow chart: basic steps in application for leave to appeal conviction or sentence ..... 247 [6.370] Application for leave to appeal conviction ................................................................... 247 [6.380] Written case ................................................................................................................... 249 [6.390] Filing of documents and role of the Registrar ............................................................. 250 [6.400] Respondent’s documents ............................................................................................... 250 [6.410] Referral of the case ....................................................................................................... 251 [6.420] Applying for leave to appeal conviction (or sentence) out of time ............................ 251 [6.430] Approach of the Court of Appeal to extend time ........................................................ 252 [6.440] The leave application ..................................................................................................... 254 [6.470] Presence of appellant ..................................................................................................... 256 [6.480] Forfeiture and destruction of property during appeal period ....................................... 256 [6.490] Report of trial judge ...................................................................................................... 256 [6.500] The appeal hearing .............................................................................................................. 257 [6.510] Raising points on appeal not raised at trial .................................................................. 258 [6.540] Bail pending appeal ....................................................................................................... 261 [6.570] Bail after appeal pending new trial ............................................................................... 264 [6.580] Costs on successful appeal ............................................................................................ 264 [6.590] Abandonment of the application or the appeal ............................................................ 265 [6.600] Reopening an application or appeal: correcting minor errors ..................................... 265 [6.610] PART B: SENTENCE APPEALS ....................................................................................... 267 [6.610] the right to appeal sentence ................................................................................................. 267 [6.620] Can appeal be brought if appellant consented to the sentence? ........................................ 267 [6.630] Test to determine appeal against sentence .......................................................................... 268 [6.640] Relevance of House v The King ......................................................................................... 268 [6.650] Manifest excess as ground of appeal .................................................................................. 270 [6.660] Weight is part of manifest excess ................................................................................. 271 [6.670] Common issues going to weight ................................................................................... 272 [6.760] Other issues and principles often arising on appeal against sentence ............................... 284 [6.760] Purposes of sentencing .................................................................................................. 284 [6.830] Maximum penalty .......................................................................................................... 291 [6.840] Current sentencing practices ......................................................................................... 292 [6.850] Totality ........................................................................................................................... 298 [6.860] Crushing sentence .......................................................................................................... 299 [6.870] Double punishment ........................................................................................................ 300 [6.880] Order of serving sentences ............................................................................................ 302 [6.890] Time reckoned as served ............................................................................................... 303 [6.910] Cumulation and concurrency ......................................................................................... 306 [6.920] Parsimony ....................................................................................................................... 308

xxi [6.930] Non-parole period .......................................................................................................... 309 [6.940] Parity .............................................................................................................................. 310 [6.950] Mental state: Verdins ..................................................................................................... 311 [6.970] Procedure on sentence appeals ............................................................................................ 313 [6.980] Application for leave to appeal sentence ...................................................................... 314 [6.990] Written case ................................................................................................................... 315 [6.1000] Filing of documents and role of Registrar ................................................................. 316 [6.1010] Respondent’s documents ............................................................................................. 316 [6.1020] Stay of sentence ........................................................................................................... 317 [6.1030] Applying for leave to appeal sentence out of time .................................................... 317 [6.1040] Referral of application ................................................................................................. 317 [6.1050] The test on a leave application ................................................................................... 318 [6.1055] Correcting technical errors in the sentence ................................................................ 319 [6.1060] Leave granted ............................................................................................................... 320 [6.1070] Leave refused ............................................................................................................... 320 [6.1080] Hearing of appeal .............................................................................................................. 320 [6.1090] Admissibility of fresh evidence on offender appeal ................................................... 321 [6.1100] Raising new arguments not raised at sentencing hearing .......................................... 322 [6.1110] Orders on successful appeal against sentence ............................................................ 323 [6.1120] DPP appeals against sentence ........................................................................................... 323 [6.1120] DPP appeal against inadequacy of sentence imposed by County Court or Supreme Court ........................................................................................................ 323 [6.1180] Orders available on DPP appeal against sentence ...................................................... 329 [6.1190] Procedure on Crown appeal against sentence ............................................................ 329 [6.1210] DPP appeal sentence: breach of undertaking to assist ............................................... 331 [6.1260] Guideline judgment ........................................................................................................... 333 [6.1270] Jurisdiction ................................................................................................................... 333 [6.1280] Matters of regard for the court ................................................................................... 334 [6.1290] Content ......................................................................................................................... 334 [6.1300] Procedure ..................................................................................................................... 334 [6.1310] Boulton v The Queen .................................................................................................. 335 [6.1390] PART C: CASE STATED ................................................................................................. 341 [6.1390] Jurisdiction ......................................................................................................................... 341 [6.1400] What is a question of law? ............................................................................................... 343 [6.1410] Procedure where trial commenced .................................................................................... 343 [6.1420] Refusal to reserve .............................................................................................................. 343 [6.1430] Trial judge states a case .................................................................................................... 344 [6.1440] Determination by Court of Appeal ................................................................................... 344 [6.1450] Remittal of case stated ...................................................................................................... 345

xxii Table of Contents [6.1460] Costs on case stated ........................................................................................................... 345 [6.1470] Examples of case stated .............................................................................................. 345 [6.1480] Referral of question of law under Victorian Charter of Human Rights .......................... 347 [6.1490] DPP reference to Court of Appeal .................................................................................... 348 [6.1490] Jurisdiction ................................................................................................................... 348 [6.1500] Costs on DPP reference ............................................................................................... 348 [6.1510] Judicial review of decisions made by County Court or Supreme Court ......................... 348 [6.1520] Application by DPP for retrial of person acquitted ......................................................... 349 [6.1520] Scope of CPA Chapter 7A .......................................................................................... 349 [6.1530] Flow chart: DPP application for retrial ...................................................................... 350 [6.1540] When can police reinvestigate? ................................................................................... 350 [6.1550] DPP test for authorising reinvestigation ..................................................................... 352 [6.1560] Reinvestigation without DPP authorisation ................................................................ 352 [6.1570] Right of DPP to file new indictment .......................................................................... 353 [6.1580] Bail ............................................................................................................................... 353 [6.1590] Right of DPP to apply to Court of Appeal ................................................................. 354 [6.1600] Notice of application ................................................................................................... 355 [6.1610] Service on respondent ................................................................................................. 355 [6.1620] Extension of time ......................................................................................................... 355 [6.1630] Discontinuation of proceedings ................................................................................... 355 [6.1640] Test to determine application based on tainted acquittal ........................................... 356 [6.1650] Test to determine application based on fresh and compelling evidence ................... 357 [6.1660] Test to determine application based on administration of justice offence ................ 358 [6.1670] Powers of Court of Appeal on successful application ............................................... 358 [6.1680] DPP election ................................................................................................................ 359 [6.1690] Prohibitions at new trial .............................................................................................. 359 [6.1700] Approach of Victorian DPP to retrial applications ..................................................... 359 [6.1710] Petition for mercy .............................................................................................................. 360 [6.1720] Jurisdiction ................................................................................................................... 361 [6.1730] Procedure ..................................................................................................................... 361 [6.1740] Powers of Court of Appeal ......................................................................................... 362 Chapter 7: Appeals from the Magistrates’ Court on a Question of Law and Judicial Reviews of Magistrates’ Court and County Court decisions ............................ 365 [7.10] Introduction ............................................................................................................................ 367 [7.20] PART ONE: APPEALS ON A QUESTION OF LAW ........................................................ 368 [7.20] Appeals on a question of law ............................................................................................... 368 [7.30] Final order .............................................................................................................................. 369 [7.40] Limits to jurisdiction ............................................................................................................. 369

xxiii [7.50] DPP acts for the informant .................................................................................................... 370 [7.60] Obtaining transcripts of summary proceedings .................................................................... 370 [7.70] Time limits ............................................................................................................................. 371 [7.80] Initial documentation ............................................................................................................. 371 [7.90] Notice of Appeal .............................................................................................................. 371 [7.100] Affidavit in support ........................................................................................................ 372 [7.110] Summons for directions ................................................................................................. 373 [7.120] Commencement by filing .................................................................................................... 373 [7.130] Service .................................................................................................................................. 374 [7.140] Appeal by an accused – service upon the informant ................................................... 374 [7.150] OPP may accept service on behalf of Victoria Police informant ................................ 374 [7.160] Non-police prosecuting agency ..................................................................................... 374 [7.170] Appeal by or on behalf of informant ............................................................................ 374 [7.180] Personal service upon accused ...................................................................................... 375 [7.190] Service upon accused’s legal representative ................................................................. 375 [7.200] Service upon Magistrates’ Court ................................................................................... 375 [7.210] Affidavit of service .............................................................................................................. 375 [7.220] Application for leave to appeal out of time ....................................................................... 375 [7.230] Application for stay of the Magistrates’ Court orders ....................................................... 376 [7.240] Bail pending appeal ............................................................................................................. 376 [7.250] PART TWO: JUDICIAL REVIEWS .................................................................................. 376 [7.250] Judicial reviews: Order 56 .................................................................................................. 376 [7.260] Error on the face of the record ........................................................................................... 377 [7.270] Nomination of court under review as defendant ................................................................ 377 [7.280] Review of interlocutory decisions of Magistrates’ Court .................................................. 378 [7.290] Review of County Court appeal proceedings ..................................................................... 378 [7.300] Review of County Court trial orders and rulings ............................................................... 378 [7.310] Obtaining transcript of proceedings under review ............................................................. 379 [7.320] Transcript of Magistrates’ Court proceedings .............................................................. 379 [7.330] Transcript of County Court appeal proceedings ........................................................... 379 [7.340] Transcript of County Court trial proceedings ............................................................... 379 [7.350] Time limit for filing Order 56 originating motion ............................................................. 379 [7.360] Christmas/new year break ................................................................................................... 379 [7.370] Expiry date falls on weekend or holiday ............................................................................ 380 [7.380] Extension of time ................................................................................................................. 380 [7.390] Time limit for serving Order 56 originating motion .......................................................... 380 [7.400] Initial documentation ........................................................................................................... 381 [7.410] Originating motion in Form 5G .................................................................................... 381 [7.420] Affidavit in support ........................................................................................................ 381

xxiv Table of Contents [7.430] Commencement by filing .................................................................................................... 382 [7.440] Service of originating motion ............................................................................................. 382 [7.450] Service upon informant ................................................................................................. 383 [7.460] Service upon prosecuting agency other than police ..................................................... 383 [7.470] Service upon DPP .......................................................................................................... 383 [7.480] Service upon court under review .................................................................................. 383 [7.490] Response from court under review ............................................................................... 384 [7.500] Notice of appearance ........................................................................................................... 384 [7.510] Affidavit of service .............................................................................................................. 384 [7.520] PART THREE: PROCEDURES FOR ALL CASES IN JUDICIAL REVIEWS AND APPEALS LIST ................................................................................................................... 384 [7.520] Procedures for all cases in judicial reviews and appeals list ............................................. 384 [7.530] Powers of Associate Judge of Supreme Court ................................................................... 384 [7.540] Directions pursuant to Practice Note No 9 of 2015 ........................................................... 385 [7.550] Directions by consent .................................................................................................... 385 [7.560] Liberty to apply ............................................................................................................. 385 [7.570] Fixing of hearing date ................................................................................................... 385 [7.580] Charter issues ................................................................................................................. 385 [7.590] Resolution of appeal or judicial review by consent ........................................................... 386 [7.600] Application for summary judgment .................................................................................... 386 [7.610] Appeal against order made by Associate Judge ................................................................. 387 [7.620] Further affidavit and affidavit in reply ................................................................................ 387 [7.630] Written outlines of submissions .......................................................................................... 387 [7.640] Court book and combined book of authorities ................................................................... 388 [7.650] Notice of trial and callover form ........................................................................................ 388 [7.660] Proceeding discontinued ...................................................................................................... 389 [7.670] Hearing and determination of appeal or judicial review ................................................... 389 [7.680] Appeal on question of law ............................................................................................ 389 [7.690] Order 56 judicial review ............................................................................................... 390 [7.700] Costs ..................................................................................................................................... 390 [7.710] Flow chart for cases in Judicial Reviews and Appeals list ............................................... 391 [7.720] PART FOUR: APPLICATION FOR LEAVE TO APPEAL TO COURT OF APPEAL ... 393 [7.720] Application for leave to appeal to court of appeal ............................................................ 393 [7.730] New procedures ................................................................................................................... 394 [7.740] Leave to appeal .................................................................................................................... 394 [7.750] Time limits ........................................................................................................................... 395 [7.760] Initiating documents ............................................................................................................ 395 [7.770] Applications other than applications for leave to appeal ................................................... 395 [7.780] Service .................................................................................................................................. 395

xxv [7.790] Written case in response ...................................................................................................... 396 [7.800] Respondent does not intend to respond or contest application for leave to appeal ......... 396 [7.810] Cross-applications for leave to appeal and notices of contention ..................................... 396 [7.820] Registrar settles contents of application book .................................................................... 396 [7.830] Filing combined folder of authorities and agreed list of transcript references ................. 397 [7.840] Format of combined folder of authorities ..................................................................... 397 [7.850] Agreed list of transcript references ............................................................................... 397 [7.860] Referral by registrar of applications for leave to appeal ................................................... 397 [7.870] Consideration of applications by a single Judge of Appeal ............................................... 398 [7.880] Dismissal of application for leave to appeal with oral hearing ......................................... 398 [7.890] Dismissal of application for leave to appeal without oral hearing .................................... 398 [7.900] Leave to appeal granted ...................................................................................................... 399 [7.910] Powers of Court of Appeal ................................................................................................. 399 [7.920] Sample forms ....................................................................................................................... 399 Chapter 8: Appeals to the Federal Court of Australia ................................................................ 413 [8.10] Introduction ............................................................................................................................ 414 [8.20] Criminal jurisdiction of the Federal Court ........................................................................... 414 [8.30] Appellate jurisdiction of the Federal Court .......................................................................... 415 [8.40] PART A: APPEALS FROM INDICTABLE PROCEEDINGS ............................................ 415 [8.40] What judgments or decisions can be appealed against? ...................................................... 415 [8.50] What is an eligible primary court? ....................................................................................... 416 [8.60] Requirement of leave ............................................................................................................. 416 [8.70] Right to appeal a conviction ................................................................................................. 416 [8.80] Grounds of appeal ........................................................................................................... 417 [8.90] Test to determine appeal against conviction ................................................................... 417 [8.100] Disposition powers on appeal against conviction for an indictable offence ............... 418 [8.110] Alternate basis of appeal by offender: consent of Attorney-General ........................... 419 [8.120] Appeal against finding of mental illness ............................................................................ 419 [8.130] Test to determine appeal against finding of mental illness .......................................... 419 [8.140] Orders available on appeal against finding of mental illness ...................................... 419 [8.150] Procedure on conviction appeal .......................................................................................... 420 [8.150] Application for leave to appeal ..................................................................................... 420 [8.170] Notice of application for leave ..................................................................................... 420 [8.180] Applicable law ............................................................................................................... 421 [8.190] Time limits ..................................................................................................................... 421 [8.200] Applying out of time ..................................................................................................... 421 [8.210] Service ............................................................................................................................ 421 [8.220] Who hears the application for leave? ........................................................................... 421

xxvi Table of Contents [8.230] Oral hearing or hearing on the papers .......................................................................... 421 [8.240] File submissions ............................................................................................................ 422 [8.250] Withdrawal of application ............................................................................................. 422 [8.260] Bail pending appeal ....................................................................................................... 422 [8.270] Hearing of the appeal .......................................................................................................... 422 [8.290] Notice of appeal ............................................................................................................. 424 [8.300] Time limit ...................................................................................................................... 424 [8.310] Filing out of time ........................................................................................................... 424 [8.320] Registrar sets hearing date ............................................................................................ 424 [8.330] Service ............................................................................................................................ 424 [8.340] Objection to appeal ........................................................................................................ 424 [8.350] Cross-appeal ................................................................................................................... 424 [8.360] Stay ................................................................................................................................. 425 [8.370] Appeal book ................................................................................................................... 425 [8.380] Application to receive further evidence ........................................................................ 425 [8.390] Applicant files submissions ........................................................................................... 426 [8.400] Respondent files submissions ........................................................................................ 426 [8.410] Applicant files reply ...................................................................................................... 426 [8.420] File and serve Part C of appeal book ........................................................................... 426 [8.430] Abandonment of appeal ................................................................................................. 426 [8.440] Report of trial judge ...................................................................................................... 426 [8.450] Attendance of appellant ................................................................................................. 426 [8.460] Nature of appeal hearing ............................................................................................... 427 [8.470] Costs on successful appeal ............................................................................................ 427 [8.480] Right of Crown to appeal a finding of no case .................................................................. 427 [8.490] Test to determine appeal against finding of no case .................................................... 427 [8.500] Disposition orders on successful Crown appeal against finding of no case ............... 427 [8.510] Appeal against sentence for indictable offence .................................................................. 428 [8.510] Right to appeal ............................................................................................................... 428 [8.520] Test to determine appeal against sentence .................................................................... 428 [8.530] Disposition powers ........................................................................................................ 428 [8.540] Procedure on sentence appeal ....................................................................................... 428 [8.550] Case study of appeal against sentence in indictable matter ......................................... 429 [8.560] DPP appeal against sentence ............................................................................................... 429 [8.560] Jurisdiction to hear appeal ............................................................................................. 429 [8.570] Right to appeal ............................................................................................................... 429 [8.580] Test to determine appeal against sentence .................................................................... 429 [8.590] Disposition powers on appeal against sentence ........................................................... 430

xxvii [8.600] Appeals against bail, forfeiture of bail and interim orders and judgments ....................... 430 [8.610] Case stated ........................................................................................................................... 430 [8.620] DPP Referral of question of law ......................................................................................... 431 [8.630] PART B: APPEALS FROM SUMMARY PROCEEDINGS ............................................. 432 [8.630] Federal Court of Australia ................................................................................................... 432 [8.640] Jurisdiction ........................................................................................................................... 432 [8.650] Leave to appeal .................................................................................................................... 432 [8.660] Who can appeal? ................................................................................................................. 432 [8.670] Right to appeal conviction imposed in summary proceedings .......................................... 433 [8.680] Test to determine appeal against conviction ................................................................. 433 [8.690] Disposition powers on successful appeal against conviction ....................................... 433 [8.700] Appeal against sentence in summary proceeding ............................................................... 433 [8.700] Right to appeal ............................................................................................................... 433 [8.710] Test to determine appeal ............................................................................................... 433 [8.720] Disposition powers on appeal against sentence ........................................................... 433 [8.730] Appeal against acquittal in summary proceedings ............................................................. 434 [8.740] Test to determine appeal against acquittal .................................................................... 434 [8.750] Disposition powers on appeal against acquittal ........................................................... 434 [8.760] Procedure on appeals from summary proceedings ............................................................. 434 [8.770] Time limit ...................................................................................................................... 434 [8.780] Right to attend ............................................................................................................... 434 [8.790] Applicable laws ............................................................................................................. 434 [8.800] Evidence on an appeal ................................................................................................... 435 [8.810] Case study of appeal against summary conviction and sentence ................................ 435 [8.820] PART C: APPEALS IN FEDERAL EXTRADITION PROCEEDINGS .......................... 435 [8.820] Introduction .......................................................................................................................... 435 [8.830] Flow chart 3 ................................................................................................................... 436 [8.840] Review decision of magistrate regarding eligibility for surrender .................................... 437 [8.850] Further appeal to Full Court of Federal Court ................................................................... 438 [8.860] Further appeal to High Court .............................................................................................. 438 [8.870] Admissible evidence on reviews and appeals .................................................................... 438 [8.880] Judicial review of extradition decision ............................................................................... 439 [8.890] Case examples of judicial review ....................................................................................... 440 Chapter 9: Appeals to the High Court .......................................................................................... 441 [9.10] Introduction ............................................................................................................................ 441 [9.20] Unique appellate role of the High Court .............................................................................. 442 [9.30] The appellate jurisdiction of the High Court ....................................................................... 442 [9.40] Who can appeal? ................................................................................................................... 443

xxviii

Table of Contents

[9.50] Appeal against sentence .................................................................................................. 444 [9.60] Crown appeals against sentence ...................................................................................... 444 [9.70] Crown appeal against acquittal ....................................................................................... 445 [9.80] The original jurisdiction of the High Court ......................................................................... 446 [9.90] Requirement to obtain special leave to appeal: Judiciary Act 1903 ................................... 446 [9.100] Test to determine special leave to appeal ........................................................................... 447 [9.110] Test for determining appeal ................................................................................................. 449 [9.120] Orders available on successful appeal ................................................................................ 449 [9.130] Acquittal or new trial .................................................................................................... 450 [9.140] Procedure on application for special leave to appeal ......................................................... 451 [9.140] Introduction .................................................................................................................... 451 [9.150] Flow chart 1: Commencing application for special leave to appeal ........................... 452 [9.160] Notice of application ..................................................................................................... 453 [9.170] Time limits for filing ..................................................................................................... 454 [9.180] Service ............................................................................................................................ 454 [9.190] Appearance ..................................................................................................................... 454 [9.200] Response ........................................................................................................................ 454 [9.210] Applicant’s reply ........................................................................................................... 455 [9.220] Application book ........................................................................................................... 455 [9.230] Directions by Registrar .................................................................................................. 456 [9.240] Discontinuation of application ...................................................................................... 456 [9.250] Determination of application for leave without oral argument .................................... 456 [9.260] Determination of application for leave with hearing ................................................... 457 [9.270] Unrepresented applicant ................................................................................................ 457 [9.280] Flow chart 2: Unrepresented applicant ......................................................................... 457 [9.310] Stay of proceedings below ............................................................................................ 459 [9.320] Interveners ...................................................................................................................... 459 [9.330] Bail before and after grant of special leave ................................................................. 460 [9.340] Commencement of appeal ............................................................................................. 461 [9.350] Flow chart 3: Commencement of appeal ...................................................................... 461 [9.360] Notice of appeal ............................................................................................................. 463 [9.370] Time limits ..................................................................................................................... 463 [9.380] Place for filing ............................................................................................................... 463 [9.390] Service and lodgement .................................................................................................. 463 [9.400] Appearance ..................................................................................................................... 464 [9.410] Preparation of index ...................................................................................................... 464 [9.420] Settling the index ........................................................................................................... 464 [9.430] Preparation and filing of appeal book ........................................................................... 465

xxix [9.440] Filing and service of appeal book ................................................................................. 466 [9.450] Discontinuance of appeal .............................................................................................. 467 [9.460] Directions by registrar ................................................................................................... 467 [9.470] Dismissal for want of prosecution ................................................................................ 467 [9.480] Written submission of appellant .................................................................................... 467 [9.490] Written submission of respondent ................................................................................. 467 [9.500] Written submission of intervener .................................................................................. 468 [9.510] Written submission in reply .......................................................................................... 468 [9.520] Annotated form of written submission and chronology ............................................... 468 [9.530] Publication of written submission ................................................................................. 468 [9.540] Outline of oral submissions ........................................................................................... 469 [9.550] Hearing of the appeal .......................................................................................................... 469 [9.560] Issues that can arise on appeal ...................................................................................... 469 [9.580] Costs ............................................................................................................................... 470 [9.590] Other appeals to the High Court ......................................................................................... 470 [9.590] Constitutional writs ........................................................................................................ 470 [9.600] Case stated ..................................................................................................................... 471 [9.610] Appendix 1 – Snapshot of Criminal Appeals to High Court: Jan 2012–Aug 2016 ......... 473 [9.610] Appellant and decision appealed ................................................................................... 473 [9.620] Appeal based on original jurisdiction of the High Court ............................................ 473 [9.630] Disposition ..................................................................................................................... 473 [9.640] Appendix 2 – Sample Forms .............................................................................................. 475 Chapter 10: Appellate Advocacy .................................................................................................... 479 [10.10] PART 1: INTRODUCTION ................................................................................................ 480 [10.10] Introduction .......................................................................................................................... 480 [10.20] Wants and needs of the appellate court .............................................................................. 480 [10.30] Know the rules and the law ................................................................................................ 482 [10.40] PART 2: CONVICTION AND SENTENCE APPEALS TO THE COURT OF APPEAL .......................................................................................................... 483 [10.40] Drafting grounds of appeal ................................................................................................. 483 [10.50] Take note of potential appeal grounds ................................................................................ 483 [10.60] The leave hearing ................................................................................................................ 484 [10.70] Tests applicable to leave applications ................................................................................. 485 [10.70] Conviction appeals ......................................................................................................... 485 [10.80] Sentence appeals ............................................................................................................ 485 [10.90] The oral hearing of leave to appeal .................................................................................... 486 [10.100] Grounds of appeal against conviction ............................................................................... 486 [10.110] Unreasonable or unsupportable verdicts ........................................................................... 487 [10.120] How to prepare an unreasonable or unsupportable verdict argument ....................... 488

xxx

Table of Contents

[10.130] Substantial miscarriage of justice: Baini v The Queen .................................................... 492 [10.140] Types of errors or irregularities ........................................................................................ 494 [10.150] Post Baini v The Queen .................................................................................................... 495 [10.160] Andelman v The Queen .............................................................................................. 495 [10.170] Objections and directions ............................................................................................ 498 [10.180] Grounds of appeal against sentence .................................................................................. 499 [10.190] Manifest excess and current sentencing practices in Victoria ......................................... 500 [10.200] Statutory sentencing guidelines ......................................................................................... 502 [10.210] Plea transcript and sentencing remarks ............................................................................. 503 [10.220] Common law principles ..................................................................................................... 504 [10.230] House v The King ............................................................................................................. 505 [10.240] PART 3: DRAFTING, ANALYSIS, EDITING AND PERSUASION ............................ 506 [10.240] Consolidating information when drafting grounds of appeal and the written case ........ 506 [10.250] Structure of appeal grounds and written case .................................................................. 507 [10.260] Be clear about the grounds to be relied upon .................................................................. 507 [10.270] Identify and analyse the issue ........................................................................................... 508 [10.280] Write an ending ................................................................................................................. 508 [10.290] Drafting errors ................................................................................................................... 508 [10.300] Preparing oral submissions based on the written case ..................................................... 509 [10.310] Answering questions posed by the court .......................................................................... 510 [10.320] Oral argument on an interlocutory appeal ........................................................................ 512 [10.330] PART 4: APPEALS TO THE HIGH COURT .................................................................. 512 [10.330] Appearing in the High Court of Australia ........................................................................ 512 [10.340] Oral argument in the High Court ...................................................................................... 515 [10.350] PART 5: CONCLUDING COMMENTS .......................................................................... 516 [10.350] Advocacy and wellbeing ................................................................................................... 516 [10.360] Dealing with negative responses from the Court ............................................................. 516 [10.370] Managing anxiety .............................................................................................................. 517 Bibliography ....................................................................................................................................... 519 Index .................................................................................................................................................. 525

Table of Cases A AB v The Queen (No 2) (2008) 18 VR 391 ................................................................................. 6.760 AJS v The Queen (2007) 81 ALJR 1208; [2007] HCA 27 ........................................................... 6.190 AL v The Queen [2014] VSCA 81 ................................................................................................ 5.390 AW v The Queen [2013] VSC 56 ....................................................................................... 3.270, 4.190 AWP v The Queen [2012] VSCA 41 ........................................................................................... 6.1090 Adams v Kennedy (2000) 49 NSWLR 78 ....................................................................................... 2.10 Ahmed v HM Treasury [2010] 2 AC 534 ........................................................................................ 2.10 Alqudsi v The Queen (2016) 90 ALJR 711; 332 ALR 20; [2016] HCA 24 .............................. 10.120 Amato v The Queen [2013] VSCA 346 ......................................................................................... 6.100 An application under the Major Crime (Investigative Powers) Act 2004, Re (2009) 24 VR 415; [2009] VSC 381 ............................................................................................................. 2.280, 2.310 Andelman v The Queen (2013) 38 VR 659; [2013] VSCA 25 .............. 6.120, 6.140, 10.150, 10.160 Anderson v The Queen (2013) 230 A Crim R 38; [2013] VSCA 138 ............................ 6.840, 10.190 Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 ................................................ 1.90, 1.100 Applicants A1 and A2 v Brouwer (2007) 16 VR 612; [2007] VSCA 139 ........................... 0.10, 0.20 Application for Bail by Foxwell (No 2), Re [2014] VSC 145 .......................................... 3.260, 4.180 Application for Bail by RL, Re [2014] VSC 336 .............................................................. 3.270, 4.190 Application for Bail by RS, Re [2013] VSC 350 .............................................................. 3.270, 4.190 Arnautovic v The Queen [2011] VSCA 216 .................................................................................. 6.430 Arthars v The Queen [2013] VSCA 258 ........................................................................................ 6.710 Ash v The Queen [2010] VSCA 117 ............................................................................................. 6.550 Ashdown v The Queen (2011) 37 VR 341; 219 A Crim R 454; [2011] VSCA 408 ....... 6.640, 6.830, 6.840, 6.845, 10.190 Attorney-General v Chmil (unreported, VSCA, 1 August 1977) .................................................. 6.750 Attorney-General (SA) v Tichy (1982) 30 SASR 84 .................................................................... 6.910 Attorney-General’s Reference (No 1 of 1983) (1983) 2 VR 410 ............................................... 6.1740 Ayol v The Queen [2014] VSCA 151 ................................................................. 6.650, 10.180, 10.190 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 ....... 6.750, 6.800, 6.850, 6.860, 6.870

B BWA v The Queen [2012] VSCA 218 ........................................................................................... 6.100 Bailey v DPP (1988) 34 A Crim R 154 ............................................................................ 6.440, 6.1050 Baini v The Queen (2011) 33 VR 252 .............................................................................. 6.110, 10.130 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 ..... 6.80, 6.110, 6.120, 6.140, 6.170, 8.90, 10.110, 10.130, 10.150, 10.160, 10.330 Baini v The Queen (2013) 42 VR 608; 232 A Crim R 17; [2013] VSCA 157 ... 6.110, 6.120, 10.130 Banks v Bice [2014] VSC 610 ....................................................................................................... 7.680 Barbaro v DPP (Cth) (2009) 20 VR 717; [2009] VSCA 26 ......................................................... 2.200 Barbaro v The Queen (2014) 88 ALJR 372 .................................................................................. 6.840 Barca v The Queen (1975) 133 CLR 82 ............................................................................ 6.90, 10.120 Bare v IBAC [2015] VSCA 197 ........................................................................................... 2.90, 2.220 Bass (a pseudonym) v The Queen [2014] VSCA 350 ................................................... 10.150, 10.160 Belhaven v Stenton Peerage (1975) 1 App Cas 278 ................................................................... 10.120 Beljajev v DPP (unreported, Vic Sup Ct FC, 8 August 1991) .................... 3.260, 3.290, 4.180, 4.210 Bensegger v The Queen [1979] WAR 65 ...................................................................................... 6.830 Benson v The Queen [2014] VSCA 51 .................................................... 6.120, 6.140, 10.150, 10.160 Beqiri v The Queen (2013) 37 VR 219; [2013] VSCA 39 ............................................................. 6.60

xxxii

Table of Cases

Bernath v The Queen [2014] VSCA 195 ....................................................................................... 6.940 Beyer v The Queen [2011] VSCA 15 ............................................................................................ 6.820 Bifel v The Queen [2013] VSCA 82 .............................................................................................. 6.790 Bini v The Queen (1994) 68 ALJR 859 .......................................................................................... 9.50 Boulton v The Queen [2014] VSCA 342 .............. 0.20, 6.620, 6.770, 6.790, 6.1310, 6.1330, 6.1340, 6.1350, 6.1360, 6.1370 Boulton v The Queen (unreported, Vic Court of Appeal, Nettle, Redlich and Coghlan JJA, 14 November 2013) ...................................................................................................................... 6.1330 Brennan v The King (1936) 55 CLR 253 .................................................................................... 10.120 Brock v United States of America (2007) 157 FCR 121; [2007] FCAFC 3 ................................ 8.870 Brown v The Queen (1986) 160 CLR 171 .................................................................................. 10.120 Bryer v The Queen (1994) 75 Aust Crim R 456 ......................................................................... 6.1740 Bugmy v The Queen (1990) 169 CLR 525 ............................................................ 6.930, 9.50, 10.330 Bui v DPP (Cth) (2012) 244 CLR 638; [2012] HCA 1 ................................................... 1.910, 6.1130 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] 135 CLR 616 ........... 0.10, 1.850 Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 ......................................................... 9.130 Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 ........................................................ 6.600

C C v Children’s Court of Victoria [2015] VSC 40 .............................................................. 3.580, 4.490 CGL v DPP (No 2) (2010) 24 VR 482; [2010] VSCA 24 ....................................... 5.80, 5.90, 6.1470 CJD v The Queen [2012] VSCA 329 ............................................................................................. 5.130 CL, a minor (by his Litigation Guardian) v DPP [2011] VSCA 227 .. 3.90, 3.570, 3.580, 4.80, 4.490 CL (a minor) v Lee (2010) 29 VR 570; [2010] VSC 517 .............................. 3.90, 3.580, 4.80, 4.490 CMB v Attorney-General NSW (2015) 317 ALR 308; [2015] HCA 9 .......................................... 9.20 CMG v The Queen [2013] VSCA 243 ........................................................................................... 6.230 CRR v The Queen (2011) 32 VR 321 ........................................................................................... 6.170 Cabal v United Mexican States (2001) 108 FCR 311 ................................................................... 8.870 Cabal v United Mexican States (No 3) (2000) 186 ALR 188 ...................................................... 8.870 Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 ...................................................... 6.680 Candolim Pty Ltd v Garrett [2005] VSC 270 ...................................................................... 1.850, 4.60 Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20 ................. 4.480 Carr v The Queen [2012] VSCA 299 ............................................................................................. 6.690 Carroll v The Queen [2011] VSCA 150 ........................................................................................ 6.700 Carrott v The Queen [2013] VSCA 90 .......................................................................................... 6.100 Castles v Secretary of the Department of Justice (2010) 28 VR 141 ............................................. 2.50 Censori v Adult Parole Board [2015] VSCA 254 ............................................... 1.100, 6.1710, 6.1740 Censori v Chairman, Adult Parole Board [2015] VSC 106 .......................................................... 1.100 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 ............................................... 10.110, 10.120 Chandler v The Queen [2010] VSCA 338 ..................................................................................... 6.710 Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244 ....................................... 4.60 Cheng v The Queen (2000) 203 CLR 248 .................................................................................. 10.120 Chester v The Queen (1988) 165 CLR 611 ................................................................................... 6.820 Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157 ........................................ 6.650, 10.180 Clarkson, Re [1986] Vic Rp 54; [1986] VR 583 ........................................................................... 6.540 Clay v The Queen (2014) 43 VR 405; [2014] VSCA 269 ............................................................ 6.120 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 ............................................................................................. 0.20, 1.820, 1.840 Commonwealth Minister for Justice v Adamas (2013) 253 CLR 43; [2013] HCA 59 ............... 8.820 Cook v The Queen [2014] VSCA 220 .................................................................................. 6.90, 6.170 Cooper v The Queen (1998) 103 A Crim R 51 ............................................................................. 6.700 Costa v The Queen [2013] VSCA 5 ................................................................................................. 6.50 Cotton v The Queen [2015] VSCA 103 ......................................................................................... 6.850 Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3 .................................. 6.370, 6.440, 9.250 Craig v South Australia (1995) 184 CLR 163 ............................................................................... 7.250

Table of Cases xxxiii Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60 ................................................... 9.560 Crocker v The Queen [2013] VSCA 318 ..................................................................................... 10.160 Crofts v The Queen (1996) 186 CLR 427 ..................................................................................... 6.170 Crump v The Queen (2012) 247 CLR 1; [2012] HCA 20 ............................................................ 9.600

D DBA, Re [2008] VSCA 138 ........................................................................................................... 6.550 DPP (Cth) v Barbaro (2009) 20 VR 717 ............................................................................ 3.290, 4.210 DPP (Cth) v Carey [2012] VSCA 15 ........................................................................................... 6.1230 DPP (Cth) v FM (2013) 233 A Crim R 83; [2013] VSCA 129 ...................................................... 5.80 DPP (Cth) v Galloway (a pseudonym) [2014] VSCA 272 .......................................................... 6.1470 DPP (Cth) v Gregory (2011) 34 VR 1 ......................................................................................... 6.1170 DPP (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30 ....................... 6.1400, 6.1390, 6.1440, 9.600 DPP (Cth) v Keating (2013) 248 CLR 459; [2013] HCA 20 ....................................................... 9.600 DPP (Cth) v Le Rosa (2010) 79 NSWLR 79 .............................................................................. 6.1130 DPP (Cth) v Peng [2014] VSCA 128 ............................................................................................. 6.940 DPP (Cth) Reference No 1 of 2008 (2008) 21 VR 111; [2008] VSCA 214 .............................. 6.1490 DPP (Vic) v Anderson [2005] VSCA 68 ........................................................................................ 6.780 DPP (Vic) v Anderson (2013) 228 A Crim R 140 ......................................................................... 6.750 DPP (Vic) v Arney [2007] VSCA 126 ......................................................................................... 10.200 DPP (Vic) v BB (2010) 29 VR 110; [2010] VSCA 211 ................................................................. 5.80 DPP (Vic) v BDX (No 2) (2010) 27 VR 536; [2010] VSCA 134 ................................................ 5.450 DPP (Vic) v Briggs [2010] VSCA 82 .......................................................................................... 6.1230 DPP (Vic) v Bright (2006) 163 A Crim R 538; [2006] VSCA 147 ............................................ 6.1145 DPP (Vic) v Brown [2009] VSCA 314 .......................................................................................... 6.780 DPP (Vic) v Brownlie and Brownlie (a Pseudonym) (No 2) [2015] VSCA 267 ........................... 5.90 DPP (Vic) v Bryer (2014) 241 A Crim R 172; [2014] VSC 224 ............................. 1.20, 4.110, 4.480 DPP (Vic) v Bulfin [1998] 4 VR 114 ............................................................................................. 6.790 DPP (Vic) v Burgess (2001) 3 VR 363; [2001] VSCA 170 ............................................ 6.770, 6.1200 DPP (Vic) v CPD [2009] VSCA 114; (2009) 22 VR 533 ............................................... 6.840, 10.200 DPP (Vic) v Carter [1998] 1 VR 601 ........................................................................................... 6.1145 DPP (Vic) v Coleman (2001) 120 A Crim R 415 ......................................................................... 6.520 DPP (Vic) v DJK [2003] VSCA 109 .............................................................................................. 6.770 DPP (Vic) v Dalgliesh (a pseudonym) [2016] VSCA 148 ............................................................ 6.845 DPP (Vic) v El-Hajje [2009] VSCA 160 ....................................................................................... 6.845 DPP (Vic) v Fricke [1993] 1 VR 367 ............................................................................................ 1.850 DPP (Vic) v Fricke [1993] 1 VR 369 .............................................................................................. 4.60 DPP (Vic) v Garde-Wilson (2006) 15 VR 640; [2006] VSCA 295 ................................................ 5.50 DPP (Vic) v Hardy [2011] VSCA 86 ........................................................................................... 6.1180 DPP (Vic) v His Honour Judge Fricke [1993] 1 VR 369 ............................................................. 7.250 DPP (Vic) v Hore (No 2) [2005] VSCA 55 ................................................................................... 7.700 DPP (Vic) v JPH (No 2) [2014] VSC 177 ....................................................................................... 1.20 DPP (Vic) v Kaba (2014) 69 MVR 137; [2014] VSC 52 ............................................................... 1.20 DPP (Vic) v Kaba [2014] VSC 52 ................................................................................................. 2.270 DPP (Vic) v Kalba (2014) 69 MVR 137 ....................................................................................... 1.100 DPP (Vic) v Karabegovic (2013) 41 VR 319; 282 FLR 383; [2013] VSCA 380 ............ 5.410, 5.450 DPP (Vic) v Karazisis (2010) 31 VR 634; [2010] VSCA 350 .. 1.900, 6.650, 6.1145, 6.1150, 6.1180, 10.180 DPP (Vic) v Lawrence (2004) 10 VR 125 ......................................................................... 6.750, 6.770 DPP (Vic) v MD (2010) 29 VR 434 .............................................................................................. 5.200 DPP (Vic) v MN; DPP v JC; DPP v JW (2009) 26 VR 563; [2009] VSCA 312 ........................ 3.430 DPP (Vic) v Malikovski [2010] VSCA 130 ................................................................................... 6.800 DPP (Vic) v Mann [2006] VSCA 228 ............................................................................ 6.1210, 6.1230 DPP (Vic) v McMaster (2008) 19 VR 191 .................................................................................... 6.870 DPP (Vic) v Moore (2003) VR 430 ................................................................................................. 7.30

xxxiv

Table of Cases

DPP (Vic) v O’Neill [2015] VSCA 325 ..... 1.30, 1.900, 6.520, 6.790, 6.960, 6.1120, 6.1150, 6.1160, 6.1170, 10.220 DPP (Vic) v Oksuz [2015] VSCA 316 ......................................... 6.850, 6.910, 6.930, 6.1050, 6.1170 DPP (Vic) v Pace, Collins and Baker (pseudonyms) [2015] VSCA 18 .... 5.100, 5.130, 5.380, 5.410, 5.450 DPP (Vic) v Papworth [2005] VSCA 88 .............................................................................. 7.70, 7.370 DPP (Vic) v S (No 2) [2009] VSCA 127 .................................................................................... 6.1230 DPP (Vic) v Sabransky [2002] VSC 143 ......................................................................................... 7.30 DPP (Vic) v Shoan (2007) 176 A Crim R 457; [2007] VSC 220 ................................................ 4.270 DPP (Vic) v Shoan (2007) 176 A Crim R 457; [2007] VSCA 220 .................................. 4.230, 4.320 DPP (Vic) v Singh (2012) 34 VR 364; [2012] VSCA 167 .................................................... 5.50, 6.30 DPP (Vic) v Singh (2012) 4 VR 364; [2012] VSCA 167 ............................................................. 8.480 DPP (Vic) v Terrick (2009) 24 VR 457 .............................................................................. 6.660, 6.990 DPP (Vic) Reference No 2 of 1996 (1998) 3 VR 241 ................................................................ 6.1490 DPP (Vic) Reference No 1 of 1984 [1984] VR 727 ................................................................... 6.1400 DPP (Vic) v Theodorellos [2010] VSCA 21 .................................................................................. 6.550 DPP (Vic) v VH (2004) 10 VR 234 ............................................................................................... 6.770 DPP (Vic) v Va [2010] VSC 311 .................................................................................................... 6.700 DPP (Vic) v WRJ [2009] VSCA 174 ............................................................................................. 6.710 DPP (Vic) v Walters (a pseudonym) [2015] VSCA 303 .................................................... 1.30, 10.200 DPP (Vic) v Zhuang [2015] VSCA 96 ........................................................................... 6.1145, 10.190 Da Costa v The Queen [2016] VSCA 49 ..................................................................................... 6.1090 Daing v The Queen [2016] VSCA 58 ............................................................................................ 6.845 Dale v DPP [2009] VSCA 212 ........................................................................................... 3.290, 4.210 Davern v Messell (1984) 155 CLR 1 ..................................................................................... 6.30, 9.70 Davies v The Queen [2014] VSCA 284 ............................................................................... 6.90, 6.170 Dawson v The Queen [2015] VSCA 166 ....................................................................................... 6.680 Day v The Queen [2011] VSCA 243 ........................................................................................... 10.220 De Freitas v Benny [1976] AC 239 ............................................................................................. 6.1720 De Silva v The Queen (2013) 236 A Crim R 214; [2013] VSCA 339 .................................................................................................................... 10.200 De Simone ................................................................................................................................................... v Bevnol Constructions & Developments Pty Ltd (2010) 30 VR 211; [2010] VSCA2.160 348 Dertilis v The Queen [2010] VSCA 360 ........................................................................................ 5.410 DeSilva v The Queen [2015] VSCA 290 ....................................................................................... 6.440 Dicker v Ashton (1974) 65 LSJS 150 ............................................................................................ 6.910 Dickson, Re [2008] VSC 516 ......................................................................................................... 2.200 Diehm v DPP (Nauru) (2013) 303 ALR 42; [2013] HCA 42 ......................................................... 9.30 Dietrich v The Queen (1992) 177 CLR 292 ........................................................................ 2.10, 2.250 Dillon (A Pseudonym) v The Queen [2014] VSCA 164 ................................................................. 5.80 Dinsdale v The Queen (2000) 202 CLR 321 ................................................................................... 9.60 Dixon v DPP [2009] VSC 224 ............................................................................................ 3.270, 4.190 Dong v DPP (Cth) [2016] VSCA 51 ............................................................................................ 6.1090 Doran v The Queen [2005] VSCA 271 .......................................................................................... 6.680 Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34 .................................................... 9.130 Dragojlovic v The Queen (2013) 230 A Crim R 226; [2013] VSCA 151 ................................. 10.120 Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43 ...................................................... 6.130 Duncan v The Queen (1983) 47 ALR 746 .................................................................................... 6.800 Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45 ......................................................... 6.170

E Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 ......................................................... 9.570 Efandis v The Queen (2014) 41 VR 456; [2014] VSCA 42 .............................................. 4.160, 6.430 El-Hage v The Queen [2012] VSCA 309 ...................................................................................... 6.740 El-Hilli and Melville v The Queen [2015] NSWCCA 146 ........................................................... 6.550 Engebretson v Bartlett (2007) 16 VR 417; [2007] VSC 163 ........................................................ 4.480 Entick v Carrington (1765) 95 ER 807 ............................................................................................ 2.10

Table of Cases xxxv Everett v The Queen (1994) 124 ALR 529 ..................................................................................... 9.60

F Fernandez v DPP (2002) 5 VR 374 .................................................................................... 3.290, 4.210 Fernando v Port Phillip City Council [2011] VSC 592 .................................................................. 7.40 Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 ........................................................... 6.130 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 .......................................... 1.30, 9.560 Firth v County Court of Victoria [2014] VSC 448 ................................................. 3.310, 4.230, 6.630 Fitzgerald v The Queen (2014) 311 ALR 158; [2014] HCA 28 ................................................... 9.130 Flynn v DPP [1998] 1 VR 322 ...................................................................................................... 1.100 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 ............................................................ 0.20, 1.810 Francuziak v Minister for Justice [2015] FCAFC 162 .................................................................. 8.890 Francuziak v Minister for Justice [2015] FCA 464 ....................................................................... 8.890 Fraser v Walker [2015] VCC 1911 ................................................................................................. 2.210 Freeman v Harris [1980] VR 267 .................................................................................................. 6.800 Frost v The Queen [2012] VSCA 282 ........................................................................................... 6.820 Frugtniet v Victoria Legal Aid (unreported, Vic Sup Ct, Hedigan J, 11 September 1997) ......... 7.250 Furze v Nixon (2000) 2 VR 503 .................................................................................................. 6.1400

G GAM, Re (2005) 12 VR 177; [2005] VSCA 234 ............................................................ 6.150, 6.1740 GP v The Queen (2010) 27 VR 632; [2010] VSCA 142 ................................................................ 5.40 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 ................................................... 6.150 Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18 ......................................................... 1.630 Ghaidan v Godin-Mendoza [2004] 2 AC 557 .................................................................................. 2.10 Gild v Magistrates’ Court of Victoria [2015] VSC 84 ....................................................... 3.580, 4.490 Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21 ........................................................... 1.840 Glass v Chief Examiner [2015] VSC 29 ...................................................................................... 6.1510 Goldfinch v The Queen (1987) 30 A Crim R 212 ........................................................................... 4.60 Gorladenchearau v The Queen [2011] VSCA 432 ......................................................................... 6.660 Gray v DPP [2008] VSC 4 ............................................................................................................. 2.200 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 ......... 1.30, 6.840, 6.940, 6.1120, 6.1140, 6.1145 Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 ........................................ 6.845, 6.1140 Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39 .............................................. 9.50, 9.60 Guden v R (2010) 28 VR 288 ........................................................................................................ 6.710

H H v Hall (1994) 76 A Crim R 454 ................................................................................................. 6.680 H v Rowe [2008] VSC 369 ..................................................................................................... 3.20, 3.60 HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 .......................................................... 9.560 “HA”, Re [2014] VSC 237 ............................................................................................................. 6.330 Hala v Minister for Justice (2015) 145 ALD 552; [2015] FCAFC 13 ......................................... 8.890 Hancock v The Queen [2013] VSCA 199 ................................................................................... 6.1090 Harding v County Court of Victoria [2013] VSCA 711 ................................................................ 7.250 Harrison v The Queen [2015] VSCA 349; (2015) 74 MVR 58 ................................................... 6.845 Hasan v The Queen (2010) 31 VR 28 ......................................................................................... 10.190 Hawkins v The Queen (1994) 179 CLR 500 ................................................................................. 6.290 Heaney v The Queen [1992] 2 VR 531 ......................................................................................... 6.690 Heath (a Pseudonym) v The Queen [2014] VSCA 319 ................................................................ 6.230 Helfenbaum v Sattler (1999) 3 VR 583; [1999] VSC 548 ........................................................... 4.230 Hermanus (A Pseudonym) v The Queen (2015) 44 VR 335 .......................................................... 5.40 Heron v The Queen (2003) 197 ALR 81; [2003] HCA 17 ........................................................... 9.560

xxxvi

Table of Cases

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 ............................................................. 6.840 Hoare v The Queen (1989) 167 CLR 348 ..................................................................................... 6.780 Hocking v Bell (1945) 71 CLR 430 ............................................................................................ 10.120 Hogarth v The Queen (2012) 37 VR 658; [2012] VSCA 302 ...................................................... 6.845 Horwitz v Connor (1908) 6 CLR 38 ............................................................................................ 6.1720 House v The King (1936) 55 CLR 499; [1936] HCA 40 .... 0.20, 1.890, 5.170, 5.450, 6.640, 6.1130, 7.680, 8.520, 10.230 Housing v Sudi (2011) 33 VR 559 .................................................................................................. 2.90 Hoy v The Queen [2012] VSCA 49 ................................................................................. 6.780, 10.220 Hudson v The Queen (2010) 30 VR 610; [2010] VSCA 332 .............................. 6.840, 6.850, 6.1050 Humphries v Poljak [1992] 2 VR 129 ............................................................................................. 3.60 Hunter v The Queen (2013) 40 VR 660; [2013] VSCA 385 ............................................. 6.680, 6.930

I Iaonnidis v Guardian Holdings Pty Ltd (unreported, Vic Sup Ct, Smith J, 16 December 1994) ................................................................................................................... 1.100 Ibbs v The Queen (1987) 163 CLR 447 ........................................................................................ 6.830

J JBM v The Queen [2013] VSCA 69 .............................................................................................. 6.680 Jago v District Court (NSW) (1989) 168 CLR 23 ........................................................................ 1.940 Jarvis v The Queen (1993) 20 WAR 201 ....................................................................................... 6.860 Jason Picolotto v The Queen [2015] VSCA 143 ......................................................................... 10.310 Johnson v The Queen (2004) 205 ALR 34 .................................................................................... 6.870 Jones v The Queen (1989) 166 CLR 409 ............................................................. 6.500, 9.120, 10.330 Jones v The Queen (1997) 191 CLR 439 .................................................................................... 10.110 Jopar v The Queen (2013) 275 FLR 454; [2013] VSCA 83 ......................................................... 6.430 Joseph v The Queen [2014] VSCA 343 ......................................................................................... 6.940

K KJM v The Queen [2011] VSCA 151 ............................................................................................ 5.410 KJM v The Queen (No 2) (2011) 33 VR 11; [2011] VSCA 268 ...................................... 5.170, 5.450 KRI v The Queen (2011) 207 A Crim R 552; [2011] VSCA 127 ................................................ 5.160 Kalinovas v Republic of Lithuania [2015] FCA 961 .................................................................... 8.890 Kamay v The Queen [2015] VSCA 296 ........................................................................................ 6.790 Karpinski v The Queen (2011) 32 VR 85; [2011] VSCA 94 ............................................ 6.890, 6.900 Katsuno v The Queen (1999) 199 CLR 40 .................................................................................. 10.120 Kay v DPP (Cth) [2003] VSC 264 ................................................................................................. 1.100 Keeley v Mr Justice Brooking (1979) 143 CLR 162 .................................................................. 10.120 Kells v The Queen [2013] VSCA 7 ............................................................................................... 6.690 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 .................................................... 6.430 Keshtiar v The Queen [2011] VSCA 122 ...................................................................................... 6.590 Kinex Exploration v Tasco Pty Ltd (1995) 2 VR 318 .................................................................... 7.30 King v The Queen [2014] VSCA 107 .................................................................................. 6.90, 6.170 Kingswell v The Queen (1985) 159 CLR 264 ............................................................................ 10.120 Knight v The Queen (1992) 175 CLR 495 ....................................................................... 6.180, 10.110 Kocalidis v Magistrates’ Court of Victoria (No 1) [2014] VSC 243 ........................................... 1.910 Kommatos v Hellenic Republic [2014] FCAFC 13 ...................................................................... 8.890 Kotvas v The Queen [2010] VSCA 309 ........................................................................................ 6.170 Kotzmann v Magistrates Court [2014] VSC 83 ............................................................................ 7.600 Kuczborski v The Queen (2014) 254 CLR 51; [2014] HCA 46 ....................................... 9.580, 9.600 Kuek v Wellens [2000] VSC 326 ................................................................................................... 1.100 Kumar v DPP [2013] VSCA 297 ................................................................................................... 5.280

Table of Cases xxxvii Kumar v The Queen [2014] VSCA 102 ......................................................................................... 6.430 Kumova v The Queen (2012) 37 VR 538; [2012] VSCA 212 ..................................................... 6.930

L Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 ....... 0.20, 1.810, 8.520, 9.60 Lai-Ha v McCusker (2000) 101 FCR 460; [2000] FCA 1173 ........................................... 8.460, 8.810 Latina v The Queen [2015] VSCA 102 ......................................................................................... 6.680 Lazarevic v Victoria Police [2015] VSC 13 .................................................................................. 7.380 Le v The Queen (2007) 74 IPR 1; [2007] FCA 1463 ................................................................... 8.550 Lecornu v The Queen (2012) 222 A Crim R 73 ........................................................................... 6.870 Liberato v The Queen (1985) 159 CLR 507 ............................................................. 9.20, 9.50, 10.330 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 .............................................. 6.90, 10.110 Likiardopoulos v The Queen [2010] VSCA 344 ........................................................................... 6.840 Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 ........................................... 1.940 Linfox Resources Pty Ltd v The Queen (2010) 30 VR 507; [2010] VSCA 319 ........................... 5.30 Lipp v The Queen [2013] VSCA 384 ............................................................................................ 6.870 Lobban v Minister for Justice [2015] FCA 1361 .......................................................................... 8.890 Lowe v The Queen (1984) 154 CLR 606 .......................................................... 1.30, 6.940, 9.50, 9.60 Lowe v The Queen [2015] VSCA 327 ......................................................................................... 10.120 Lucev v Queensland Police Service (2012) 1 Qd R 518 .............................................................. 4.230 Ludeman v The Queen (2010) 31 VR 606; [2010] VSCA 333 .................................................. 6.1050 Luff v DPP (2003) 39 MVR 277; [2003] VSCA 81 ............................................................ 4.480, 7.50 Ly v The Queen (2014) 227 FCR 304; 315 ALR 398; [2014] FCAFC 175 ............. 8.30, 8.50, 8.550 Lydgate (a pseudonym) v The Queen [2014] VSCA 144; (2014) 46 VR 78 ............................. 6.1470 Lydgate (a pseudonym) v The Queen (No 2) [2016] VSCA 33 ................................................... 6.100 Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 ................................. 7.600

M M v The Queen (1994) 181 CLR 487 ............................................ 6.90, 8.90, 10.110, 10.120, 10.330 MA v The Queen (2011) 31 VR 203; [2011] VSCA 13 ................................. 5.80, 5.90, 5.410, 5.450 MA v The Queen (unreported, VSCA, 18 March 1998) ............................................................... 6.830 MFA v The Queen (2002) 213 CLR 606 ..................................................................................... 10.120 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 .................................... 6.90, 6.100, 10.110 MJR, Re (2000) 1 VR 119 ........................................................................................................... 6.1730 ML v The Queen [2011] VSCA 193 .............................................................................................. 5.410 MacKenzie v The Queen (1996) 190 CLR 348 ............................................................... 6.100, 10.120 Magee v Delaney (2012) 39 MVR 50; [2012] VSC 407 ......................................... 2.70, 2.210, 4.480 Maher v The Queen [2011] VSCA 136 ......................................................................................... 6.830 Mallard v The Queen (2003) WAR 1; [2003] WASCA 296 ....................................................... 6.1740 Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 ........................................................ 1.30 Mansfield v The Queen [2013] VSCA 161 .................................................................................... 6.830 Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 ............................ 6.680, 6.760, 6.830 Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105 .................................................... 6.740 Martens v Commonwealth (2009) 174 FCR 114 ........................................................................... 1.990 Mathews, Re [1973] VR 199 ........................................................................................................ 6.1740 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 ..................................................... 1.940 McCartney v The Queen (2012) 38 VR 1; [2012] VSCA 268 .......................................... 5.170, 5.390 McDonald v DPP (2010) 26 VR 242; [2010] VSCA 45 ................................................................. 5.80 McDonald v The Queen (1992) 85 NTR 1 .................................................................................. 6.1050 McL v The Queen (2000) 203 CLR 452; [2000] HCA 46 ........................................................... 6.230 McNeill v The Queen (2008) 168 FCR 198; 248 ALR 710; [2008] FCAFC 80 ........................... 8.50 McPhee v The Queen [2014] VSCA 156 ............................................................ 6.650, 6.1070, 10.180 McPherson v The Queen [2014] VSCA 59 ................................................................................... 6.650 McWhirter v Dunlop; Tran v Harris [2013] VSC 697 .................................. 4.110, 4.480, 7.20, 7.680 Meissner v The Queen (1995) 184 CLR 132 .................................................................................. 6.60

xxxviii

Table of Cases

Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 .......................................................... 6.1490 Michaels v The Queen (1995) 184 CLR 117 .................................................................................. 2.10 Mickelberg v The Queen (1989) 167 CLR 259 .................. 1.840, 6.150, 6.1740, 9.50, 9.570, 10.330 Mill v The Queen (1988) 166 CLR 59 ............................................................................. 6.850, 10.220 Milne v The Queen (2014) 242 CLR 149; [2014] HCA 4 ........................................................... 9.130 Mokbel v DPP [2002] VSC 127 ......................................................................................... 3.260, 4.180 Momcilovic v The Queen (2010) 25 VR 436; [2010] VSCA 50 .................................................. 2.150 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 .......... 2.10, 2.70, 2.100, 2.110, 2.120, 2.130, 2.250, 9.580 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 .................................................... 2.130 Morabito v The Queen [2007] NSWCCA 126 ................................................................................ 6.90 Moza v The Queen [2015] VSCA 317 ........................................................................................... 7.740 Mr and Mrs X v Secretary to the Department of Human Services [2003] VSC 140 .................. 1.850 Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 ............................................................. 6.130 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 ........................................ 6.830, 6.845

N NH v Director of Public Prosecutions [2016] HCA 33 ..................................... 6.20, 6.30, 6.600, 9.70 NT, Re [2014] VSC 381 ...................................................................................................... 3.270, 4.190 Nash v The Queen [2013] VSCA 172 ........................................................................................... 6.845 Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 ....................................... 4.230, 6.700, 9.50 Neill v County Court of Victoria (2003) 40 MVR 265; [2003] VSC 328 .............. 3.60, 3.580, 4.490 Nguyen v The Queen [2013] VSCA 63 ......................................................................................... 6.870 Nguyen v The Queen [2014] VSCA 53 ......................................................................................... 6.650 Nguyen v The Queen [2016] VSCA 198 ................................................................ 6.710, 6.840, 6.845 Nigro v Secretary, Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 .................. 2.250 Noone v Operation Smile (Aust) Inc (2012) 38 VR 569; [2012] VSCA 91 .................... 2.130, 2.250

O Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37 ..... 6.1720, 6.1740

P PJ v The Queen (2012) 36 VR 402; [2012] VSCA 36 ................................................................. 5.450 PJB v Melbourne Health [2011] VSC 327 ...................................................................................... 2.70 PNJ v DPP (2010) 27 VR 146 ....................................................................................................... 5.100 Pantorno v The Queen (1989) 166 CLR 466 ................................................................................ 9.570 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 ............................................... 6.440 Parker v DPP (1992) 28 NSWLR 282 ................................................................................ 3.310, 4.140 Parker v The Queen (1997) 186 CLR 494 .................................................................................... 6.170 Pasini v United Mexican States (2012) 209 CLR 246 .................................................................. 8.870 Peacock v The King (1911) 13 CLR 619 ........................................................................... 6.90, 10.120 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 ........................................................ 6.870 Peel v The Queen (1971) 125 CLR 447; [1971] HCA 510 ............................................................ 9.60 Pennant, Re [1997] 2 VR 85 .......................................................................................................... 6.550 Perkins v County Court of Victoria (2000) 2 VR 246 ....................................................... 1.520, 4.500 Perotti v Collyer-Bristow [2004] 2 All ER 189; [2003] EWCA Civ 266 .................................... 2.250 Pesa v The Queen [2012] VSCA 109 ............................................................................................ 6.990 Peter O’Dea and Siew Boon Lou v The Magistrates’ Court of Victoria at Melbourne and Ramon Collodetti (unreported, Vic Sup Ct, Gillard J, 20 July 1998) ............................. 1.100 Peters v The Queen (1996) 71 ALJR 309 ...................................................................................... 9.330 Peterson (a Pseudonym) v The Queen [2014] VSCA 111 ............................................................ 5.200 Petroulias v The Queen (2007) 73 NSWLR 134 ........................................................................... 5.100

Table of Cases xxxix Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140 ......... 6.650, 6.680, 6.690, 6.700, 10.200 Pillay v The Queen [2014] VSCA 249; (2014) 43 VR 327 ................................................ 6.90, 6.170 Plomp v The Queen (1963) 110 CLR 234 ......................................................................... 6.90, 10.120 Police (SA) v Cadd (1977) 69 SASR 150 ..................................................................................... 6.845 Polyukovich v Commonwealth (1991) 172 CLR 501 ..................................................................... 2.10 Postiglione v The Queen (1997) 189 CLR 295 .................................... 1.30, 6.850, 6.860, 6.940, 9.50 Potter v Tural (2000) 2 VR 612; [2000] VSCA 227 .......................................................... 1.950, 7.250 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 ......................................................... 6.930 Poyner v The Queen (1986) 66 ALR 264 ...................................................................................... 6.845 Prasoeur v The Queen [2014] VSCA 354 ...................................................................................... 6.430 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ............ 2.120, 2.130 Pyneboard v Trade Practices Commission (1983) 152 CLR 328 ................................................... 2.10

Q Quick v Creanor [2015] VSCA 273 ................................................................... 1.850, 4.60, 4.70, 7.30 Quilter v Mapleson (1882) 9 QBD 672 ......................................................................................... 1.840

R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R

v A [2008] 2 All E R 898; [2008] EWCA Crim 2908 ............................................................ 6.1640 v AHK [2001] VSCA 220 .......................................................................................................... 6.150 v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 ....................................... 6.150 v Ash [2005] VSCA 43 ............................................................................................................. 10.220 v Assange [1997] 2 VR 247 .......................................................................... 6.1400, 6.1430, 6.1440 v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 .............. 7.270, 7.490 v BD [2008] VSC 333 .................................................................................................................. 3.20 v Baden-Clay [2016] HCA 35 ............................................................................. 6.90, 9.630, 10.120 v Bangard (2005) 13 VR 146; [2005] VSCA 313 ..................................................................... 6.730 v Barrett [1959] VR 458 ................................................................................................. 3.280, 4.200 v Bartlett [1996] 2 VR 687 ........................................................................................................ 6.170 v Beard [1967] Crim LJ 376 ...................................................................................................... 6.810 v Bekhazi (2001) 3 VR 321 ....................................................................................................... 6.870 v Bell [1999] VSCA 223 ............................................................................................................ 6.750 v Benz (1989) 168 CLR 110 ........................................................................................... 9.70, 10.330 v Blick (1999) 108 A Crim R 525; [1999] VSCA 211 .................................................. 6.440, 10.70 v Boaza [1999] VSCA 126 ....................................................................................................... 10.180 v Boland (2007) 17 VR 300 ....................................................................................................... 6.800 v Borkowski (2009) 195 A Crim R 1 ....................................................................................... 6.1120 v Brewster (1980) 2 Cr App R (S) 191 ..................................................................................... 6.820 v Burke [2009] VSCA 60; (2009) 21 VR 471 ........................................................................... 6.680 v Caine (1990) 48 A Crim R 464 ............................................................................................... 6.520 v Carmody (1998) 100 A Crim R 41 ......................................................................................... 6.740 v Carroll (2002) 213 CLR 635; [2002] HCA 55 ........................................................ 6.1590, 6.1670 v Celep [1998] 4 VR 811 .................................................................................................. 6.40, 6.170 v Chai (2002) 76 ALJR 628 ....................................................................................................... 6.500 v Chaouk (2013) 40 VR 356; [2013] VSCA 99 ............................................................. 2.190, 5.450 v Cheng (1999) 48 NSWLR 616; [1999] NSWCCA 373 ........................................................... 5.50 v Clare (1984) 14 A Crim R 322 ............................................................................................... 6.790 v Clarke [1996] 2 VR 520 ............................................................................................. 1.680, 6.1140 v Clune (No 2) [1996] 1 VR 1 ................................................................................................... 6.520 v Coleman (1908) 24 TLR 798 .................................................................................................. 1.150 v Coombs [2011] VSCA 407 ...................................................................................................... 6.680 v Crawley (1908) 24 TLR 620 ................................................................................................... 1.250 v Cumberbatch (2004) 8 VR 9 ................................................................................................... 6.770 v D (1997) 69 SASR 413 ........................................................................................................... 6.845

xl R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R

Table of Cases v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v

DG (2010) 28 VR 127 ............................................................................................................. 5.390 Dang Quang Nguyen (2010) 242 CLR 491 ............................................................................ 1.740 Darby (unreported, Vic Sup Ct, Court of Criminal Appeal, 2 May 1974) ............................ 4.160 Davis (2003) 5 VR 538; [2003] VSCA 173 ........................................................................... 6.430 De Marchi [1983] 1 VR 619 ..................................................................................................... 6.50 De Vroome (1988) 38 A Crim R 146 ..................................................................................... 6.730 Dobson [2011] 1 WLR 3230; [2011] EWCA Crim 1256 .................................................... 6.1650 Downie [1998] 2 VR 517 ........................................................................................................ 6.845 Duncan [1998] 3 VR 208 ........................................................................................................ 6.680 Dunlop [2007] 1 WLR 1657; [2006] EWCA Crim 1354 .................................................... 6.1640 Durose [1991] 1 VR 176 .............................................................................................. 3.270, 4.190 Dyson [1908] 2 KB 454 .......................................................................................................... 1.160 Eliasen (1991) 53 A Crim R 391 ............................................................................... 6.720, 6.1090 Elliot (1996) 185 CLR 250; [1996] HCA 21 ........................................................................... 5.10 Etridge (1909) 25 TLR 352 ......................................................................................... 1.140, 1.160 FJL (2014) 41 VR 572; [2014] VSCA 57 ................................................................................ 5.40 Farah Jama [2009] VSCA 7 ...................................................................................................... 1.30 Fiaherty (No 2) (2008) 19 VR 305 ......................................................................................... 6.680 Fletcher [2002] VSCA 40 ...................................................................................................... 10.220 Forde [1923] 2 KB 400 ............................................................................................................. 6.60 Franklin [2009] MVR 544 {2009] VSCA 77 ......................................................................... 6.860 Fraser [2004] VSCA 147 ......................................................................................................... 6.700 G(G) [2009] EWCA Crim 1207 ............................................................................................ 6.1650 GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117 .................................................. 6.600, 6.1710 Gallagher [1998] 2 VR 671 ..................................................................................................... 1.620 Gardiner [1970] VR 278 .......................................................................................................... 6.600 Gee (2003) 212 CLR 230; [2003] HCA 12 .......................................... 0.20, 1.590, 1.910, 6.1390 Giles [1999] VSCA 208 .......................................................................................................... 6.750 Glennon (1992) 173 CLR 592; [1992] HCA 16 ......................................................... 9.70, 10.330 Goia (1987) 88 FLR 211 ....................................................................................................... 6.1460 Goia (1988) 19 FCR 212 ......................................................................................................... 5.470 Grantham [1969] 2 QB 574 .................................................................................................... 6.600 Gray [1977] VR 225 .................................................................................................... 6.680, 6.700 Grierson (1937) 54 WN (NSW) 144a ....................................................................... 6.600, 6.1710 Haleth (1982) 4 Cr App R (S) 178 ......................................................................................... 6.740 Hall (1994) A Crim R 454 ...................................................................................................... 6.680 Hamilton-Byrne [1995] 1 VR 129 ........................................................................................ 6.1390 Henderson [1999] 1 VR 830 ................................................................................................... 6.770 Hillier (2007) 228 CLR 618; [2007] HCA 13 ............................................... 6.90, 10.120, 10.330 His Honour Judge Hewitt; Ex parte Attorney-General for Victoria [1973] VR 484 .......... 6.1390 Hogan [2008] VSCA 279 ........................................................................................................ 6.910 Holmes (1979) 1 Cr App R (S) 233 ....................................................................................... 6.730 Ioannou (1985) 16 A Crim R 63 ............................................................................................. 6.800 Iorlano (1983) 151 CLR 678 ................................................................................................... 7.300 JGVR [2001] VSCA 8 ............................................................................................................. 6.100 JW (2010) 77 NSWLR 7 ........................................................................................................... 9.60 John Edward Darby (unreported, Supreme Court of Victoria, 2 May 1975) ........................ 6.430 Johnston (1995) 80 A Crim R 203 .......................................................................................... 6.770 Juric (2002) 4 VR 411 ............................................................................................................. 6.490 Kasulaitis [1998] 4 VR 224 .................................................................................................... 6.730 Khazaal (2012) 246 CLR 601; [2012] HCA 26 ..................................................................... 9.580 Kiss (1993) 69 A Crim R 436 ................................................................................................. 6.700 Klamo (2008) 18 VR 644; 184 A Crim R 262; [2008] VSCA 75 ...... 6.90, 8.90, 10.110, 10.120 Konidaris [2014] VSC 89 ........................................................................................................ 6.290 Krieg [2005] VSCA 23 ............................................................................................................ 6.780 Langdon (2004) 11 VR 18 ...................................................................................................... 6.870 Lee [1908] 24 TLR 627 .......................................................................................................... 1.150

Table of Cases xli R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R

v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v v

Lee (1950) 82 CLR 133 ............................................................................................... 9.70, 10.330 Lethlean (1995) 83 A Crim R 197 .......................................................................................... 5.100 Lomex [1998] 1 VR 551 ......................................................................................................... 6.910 M (Ca) [1996] 1 SCR 500 ...................................................................................................... 6.810 MJR (2002) 54 NSWLR 368 .................................................................................................. 6.845 MS [2009] VSC 239 .................................................................................................................. 3.20 Majeric (2001) 121 A Crim R 451 .......................................................................................... 6.680 Males [2007] VSCA 302 ......................................................................................................... 6.730 Mantini [1998] 3 VR 340 ........................................................................................................ 6.910 Many (1991) 65 ALJR 259 .......................................................................................... 9.60, 10.330 Margach [2008] VSC 255 ....................................................................................................... 6.700 Marjancevic (1991) 54 A Crim R 431 .................................................................................... 2.300 McNamara (No 2) [1977] 1 VR 257 ...................................................................................... 6.600 Merrett (2007) 14 VR 392; [2007] VSCA 1 .......................................................................... 6.710 Miceli [1998] 4 VR 588 .......................................................................................................... 6.710 Miller [2002] QCA 56 ........................................................................................................... 6.1050 Mills (1998) 4 VR 235 ................................................................................................. 6.750, 6.800 Milne (Andrew James) (1982) 4 Cr App R (S) 397 .............................................................. 6.920 Momcilovic (2010) 25 VR 436; [2010] VSCA 50 .......................................... 2.100, 2.120, 2.250 Momcilovic [2008] VSCA 183 ............................................................................................... 6.550 Moore [1957] 1 WLR 841 ...................................................................................................... 6.600 Morton [1986] VR 863 ............................................................................................................ 6.680 Munns (1908) 24 TLR 627 ..................................................................................................... 1.310 Murphy [1965] VR 187 ............................................................................................................. 6.60 Musson [1997] 1 VR 656 ........................................................................................................ 6.910 Myer [1908] 24 TLR 627 ........................................................................................................ 1.140 Naidu [2010] VSCA 265 ......................................................................................................... 5.410 Nguyen [2006] VSCA 184 .................................................................................................... 6.1090 Nguyen [1997] 1 VR 386 ........................................................................................................ 6.840 Nguyen [1998] 4 VR 394 ........................................................................................................ 6.150 Nguyen; Re DPP (Vic) Reference No 1 of 2004 [2005] 12 VR 299 .................................. 6.1490 Nixon (2000) 159 FLR 296; [2000] SASC 437 ................................................................... 6.1400 O, B [2015] SASCFC 157 ......................................................................................... 6.440, 6.1050 O’Brien & Gloster [1997] 2 VR 714 .................................................................................... 10.200 Orbach [2007] VSCA 166 ..................................................................................................... 6.1090 Orgill [2007] VSCA 236 ......................................................................................................... 6.870 Osenkowski (1982) 30 SASR 212 .................................................................... 6.740, 6.1140, 9.60 PDJ (2002) 7 VR 612 .............................................................................................................. 6.750 Pajic (2009) 23 VR 527; [2009] VSCA 53 ............................................................................ 6.680 Payara (2012) 36 VR 326; [2012] VSCA 266 ............................................... 1.520, 5.470, 6.1460 Pereira (1991) 57 A Crim R 46 ............................................................................................... 6.720 Pham (2015) 325 ALR 400; [2015] HCA 39 .............................................................. 1.910, 6.840 Raad (2006) 15 VR 338; [2006] VSCA 67 .......................................... 1.650, 6.440, 10.70, 10.80 Ramage [2004] VSC 508 ........................................................................................................ 6.690 Renzella [1997] 2 VR 88 ........................................................................................................ 6.900 Robert Vincent Holt (unreported, Vic Sup Ct, Marks J, 19 June 1984) .................... 3.260, 4.180 Roberts (2001) 53 NSWLR 138 .............................................................................................. 6.520 Rogerson (1992) 174 CLR 268; [1992] HCA 25 ..................................................................... 9.70 Romero (2011) 32 VR 486; [2011] VSCA 45 ...................................................................... 6.1100 Shah [2007] SASC 68 .................................................................................................. 6.90, 10.120 Shamouil (2006) 66 NSWLR 228 ............................................................................................. 5.90 Sidlow (1908) 24 TLR 754 ..................................................................................................... 1.160 Smith (1987) 44 SASR 587 .................................................................................................... 6.720 Stig (unreported, NSW CCA, 17 October 1996) .................................................................... 5.380 Storey (1978) 140 CLR 364; [1978] HCA 39 ........................................................................ 6.130 Tait (1979) 46 FLR 386; 24 ALR 473 ...................................................................... 6.520, 6.1140 Taylor [1958] VR 285 ............................................................................................................. 6.640

xlii Table of Cases R v Taylor (1992) 58 A Crim R 337 .............................................................................................. 6.820 R v Taylor (1999) 106 A Crim R 578 ............................................................................................ 6.750 R v Todd [1982] 2 NSWLR 517 .................................................................................................... 6.710 R v Town (1987) 30 A Crim R 220 ............................................................................................... 6.680 R v Tran (2002) 4 VR 457 .................................................................................................. 6.750, 6.770 R v Tsiaras [1996] 1 VR 398 .............................................................................................. 6.720, 6.790 R v VZ (1998) 7 VR 693; [1998] VSCA 32 ................................................................................. 6.930 R v Vaitos (1981) 4 A Crim R 238 ................................................................................................ 6.845 R v Valentini (1980) 2 A Crim R 170 ............................................................................................ 6.760 R v Van Beelen (1973) 2 SASR 353 ........................................................................................... 10.120 R v Van Boxtel (2005) 11 VR 258 ................................................................................................ 6.720 R v Vaughan (1982) 4 Cr App R 83 .............................................................................................. 6.740 R v Verdins (2007) 16 VR 269; [2007] VSCA 102 .................................. 6.790, 6.950, 6.960, 10.220 R v Vjestica (2008) 182 A Crim R 350; [2008] VSCA 47 ......................................................... 10.120 R v WEF [1998] 2 VR 385 .......................................................................................................... 6.1090 R v Wangsaimas, Vanit & Tansakun (1996) 87 A Crim R 149 .................................................... 6.680 R v Whitworth (1988) 164 CLR 500 ............................................................................................. 9.580 R v Whyte (2004) 7 VR 397; [2004] VSCA 5 .............................................................................. 6.700 R v Wilkes (1948) 77 CLR 511 ................................................................................................... 10.330 R v Williams (2007) 16 VR 168; [2007] VSC 2 ........................................................ 2.20, 2.50, 2.240 R v Williamson (1908) 24 TLR 619 .............................................................................................. 1.150 R v Williscroft [1975] VR 292 ................................................................................ 6.760, 6.790, 6.800 R v Winchester (1992) 58 A Crim R 345 ...................................................................................... 6.680 R v Withers [2009] VSCA 306 ...................................................................................................... 6.180 R v Wright [1999] 3 VR 355 ......................................................................................................... 6.520 R v Wright (1992) 77 A Crim R 67 ............................................................................................... 1.520 R v Xiao [2016] NSWSC 240 ........................................................................................................ 6.790 R v Yates [1985] VR 41 ................................................................................................................. 6.860 R v Yates (1998) 99 A Crim R 483 ............................................................................................... 6.740 R v ZMN (2002) 4 VR 537 ............................................................................................................ 6.730 R v Zakarian [1971] VR 455 .......................................................................................................... 6.600 Radenkovic v The Queen (1990) 170 CLR 623 .............................................................................. 9.50 Rahardja v Republic of Indonesia [2000] FCA 639 ...................................................................... 8.870 Randall v Wheeler (unreported, VicS up Ct, Fullagar J, 27 March 1991) ................................... 1.100 Rapson v The Queen [2014] VSCA 216 ........................................................................................ 6.120 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 ........................................... 6.150, 6.1740 Re Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 ....................... 2.70 Reilly v The Queen [2010] VSCA 278 .......................................................................................... 6.710 Republic of South Africa v Dutton (1997) 77 FCR 128 ............................................................... 8.870 Rhode v DPP (1986) 161 CLR 119; [1986] HCA 50 ..................................................................... 9.60 Rich v The Queen (2014) 312 ALR 429; [2014] VSCA 126 ................................... 1.20, 2.300, 6.150 Riley v The Queen [2015] VSCA 259 ............................................................................................. 6.60 Robbins v The Queen [2012] VSCA 34 ........................................................................................ 6.840 Robinson v Magistrates’ Court of Victoria [2000] VSCA 198 ..................................................... 7.700 Rodger v Wojcik (2014) 67 MVR 223; [2014] VSC 308 ............................. 4.110, 4.480, 7.20, 7.680 Rodriguez v The Queen [2013] VSCA 216 ................................................................................... 6.690 Romero v The Queen (2011) 32 VR 486 at; [2011] VSCA 45 .................................................. 6.1170 Roth (a Pseudonym) v The Queen [2014] VSCA 242 .................................................................. 6.430 Russell v The Queen (2011) 212 A Crim R 57 ............................................................................. 6.840

S SLS v The Queen (2014) 42 VR 64; [2014] VSCA 31 ..................................................... 5.170, 5.450 Sankey v Whitlam (1978) 21 ALR 457 ......................................................................................... 1.950 Saric v Elliot [2013] VSC 509 .............................................................................................. 4.70, 7.250 Scammell v The Queen [2015] VSCA 206 .................................................................................... 6.750 Scerri v The Queen [2010] VSCA 287 .......................................................................................... 6.660

Table of Cases xliii Schoenmakers v DPP (1991) 30 FCR 70 ...................................................................................... 8.840 Semayne v Gresham (1604) 77 ER 194 .......................................................................................... 2.10 Sharma v The Queen [2011] VSCA 356 ...................................................................................... 10.200 Sherna v The Queen [2011] VSCA 242 ......................................................................................... 6.690 Sherritt v The Queen [2015] VSCA 1 ............................................................................................ 6.800 Siganto v The Queen (1998) 194 CLR 656 ..................................................................... 6.680, 10.200 Singh v The Queen (2011) 33 VR 1; [2011] VSCA 263 .............................................................. 5.410 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 ......... 1.20, 2.100, 2.160, 2.250, 4.60, 6.1480 Slaveski v The Queen [2015] VSCA 264 ...................................................................................... 1.980 Smith v New South Wales Bar Association (1992) 176 CLR 256 ............................................... 6.600 Smith v The Queen (1994) 181 CLR 338; [1994] HCA 60 ........................................................... 5.40 Smith v The Queen [2015] HCA 27 .............................................................................................. 6.140 Smith v Western Australia [2014] WASCA 90 .............................................................................. 6.150 Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 .......... 6.440, 9.100 Sneddon v Minister for Justice [2015] HC Trans 120 .................................................................. 8.890 Snow v The Queen (1915) 20 CLR 315 .......................................................................................... 9.70 Soylemez v The Queen [2014] VSCA 23 ...................................................................................... 6.650 Sparre v The King (1942) 66 CLR 149 ....................................................................................... 10.120 Spence v The Queen [2013] VSCA 197 ...................................................................................... 6.1090 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 .......................................................... 6.170 Stalio v The Queen (2012) 223 A Crim R 261; [2012] VSCA 120 .................................... 1.30, 6.840 Stannard v DPP (2010) 28 VR 84; [2010] VSCA 165 ................................................................... 5.80 Stiles v Lamont (unreported, Vic Sup Ct, 3 March 1992) .............................................................. 7.50 Strangio v Magistrates’ Court of Victoria [2013] VSC 496 ........................................................... 1.20 Sutton (a pseudonym) v The Queen [2015] VSCA 251 ................................................................ 6.440 Sweeney v Fitzhardinge (1906) 4 CLR 716 .................................................................................. 1.850

T THD v The Queen [2010] A Crim R 106 ...................................................................................... 5.410 Taha v Broadmeadows Magistrates’ Court [2011] VSC 642 ........................................................ 2.290 Taleb v The Queen (2014) 42 VR 666; [2014] VSCA 96 ............................................................ 6.940 Teng v The Queen (2009) 22 VR 706; [2009] VSCA 148 .................................................. 1.30, 6.940 Thomas v The Queen (1960) 102 CLR 584 ....................................................................... 6.90, 10.120 Thomas v The Queen [1972] NZLR 34 ....................................................................................... 10.120 Toganivalu v The Queen [2014] VSCA 141 .................................................................................. 6.550 Tognolini v The Queen [2015] VSCA 222 .................................................................................. 6.1740 Tognolini v The Queen (No 2) [2012] VSCA 311 ........................................................................ 6.600 Tscherepko v The Queen [2010] VSCA 299 ............................................................................... 6.1090 Tuite v The Queen (No 2) [2015] VSCA 180 ........................ 5.10, 5.160, 5.280, 5.390, 5.400, 5.410 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 ................................. 0.20, 1.810

U United Mexican States v Cabal (2001) 209 CLR 165 ....................... 8.840, 9.90, 9.310, 9.330, 9.580

V Va v The Queen [2011] VSCA 426 ................................................................................................ 6.700 Vartzokas v Zanker (1989) 51 SASR 277 ...................................................................................... 6.800 Vasiliou v The Queen [2014] VSCA 22 ......................................................................................... 5.200 Vasiljkovic v Commonwealth (2006) 227 CLR 614; [2006] HCA 40 ......................................... 8.820 Veen v The Queen (1979) 143 CLR 458 ....................................................................................... 6.780 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 ................................... 6.780, 6.820 Velkoski v The Queen [2014] VSCA 121 ................................................................. 6.90, 6.120, 6.170

xliv Table of Cases Victoria Police Toll Enforcement v Taha [2013] VSCA 37 ..................................... 2.250, 2.290, 7.40 Von Arnim v Federal Republic of Germany (1999) 107 A Crim R 529 ...................................... 8.870 Von Einam v Griffith (1998) 72 SASR 110 ................................................................................... 1.990

W WBM v Chief Commissioner of Police (2012) 230 A Crim R 322; [2012] VSCA 159 .... 2.250, 7.10 WCB v The Queen [2010] VSCA 230 ........................................................................................... 6.790 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 ................ 2.190, 2.260 Walker v The Queen [2014] VSCA 177 ............................................................................. 6.120, 6.170 Warwick v The Queen [2010] VSCA 166 ..................................................................................... 6.900 Warwick v The Queen [2014] VSCA 114 ..................................................................................... 6.430 Weeder v The Queen (1980) 71 Cr App R 228 ........................................................................... 10.120 Weiss v The Queen (2005) 224 CLR 300 ..................................................................................... 1.630 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 ............................................ 6.110, 10.160 Wells v The Queen (No 2) [2010] VSCA 294 .......................................................... 2.190, 5.40, 5.450 Weng v The Queen (2013) 279 FLR 119; [2013] VSCA 221 ...................................................... 6.150 Western Australia v Rayney (No 3) [2012] WASC 404 ................................................................ 8.480 Western Australia v Rayney (2013) 46 WAR 1; [2013] WASCA 219 ................................ 0.20, 1.820 Whitehorn v The Queen (1983) 152 CLR ................................................................................... 10.110 Williams v The Queen [2013] VSCA 120 ..................................................................................... 6.850 Williams v The Queen [No 2] (1934) 50 CLR 551 ........................................................................ 9.60 Winch v The Queen (2010) 27 VR 658; [2010] VSCA 141 ............................................. 6.790, 6.845 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 .............................................. 6.840, 6.845 Woods v DPP [2014] VSC 1 .......................................................................................................... 2.200 Woolmington v DPP [1935] AC 462 ............................................................................................... 2.10 Wright v The Queen [2015] VSCA 333 ........................................................................... 6.960, 10.220

X X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 ................................. 9.600 Xypolitos v The Queen (2014) 44 VR 42; [2014] VSCA 339 ............................................ 1.30, 6.530

Y YSA v DPP (2002) 133 A Crim R 368; [2002] VSCA 149 .............................................. 3.290, 4.210 Yang v The Queen [2011] VSCA 161 .......................................................................................... 6.1230 York v The Queen (2005) 225 CLR 466; [2005] HCA 50 .................................................. 6.720, 9.50

Z ZL v The Queen (2010) 208 A Crim R 325 .................................................................................... 5.90 Zaburoni v The Queen [2016] HCA 12 ......................................................................................... 9.630 Zakaria v The Queen (1984) 12 A Crim R 386 ................................................................... 1.30, 6.940 Zoudi, Re [2006] VSCA 298 ............................................................................................... 6.540, 6.550

Table of Statutes Commonwealth Administrative Decisions (Judicial Review) Act 1977 s 9A: 1.940 Sch 1, para (xa): 1.940

Australia Act 1986 s 7(2): 6.1720 s 7(5): 6.1720

Competition and Consumer Act 2010 s 44ZZRF: 8.20, 8.50 s 44ZZRG: 8.20, 8.50

Commonwealth of Australia Constitution Act 1901: 1.920, 9.80, 9.320 s s s s s s

70: 9.10 73: 9.309.330, 75: 9.80 75(v): 8.830 76: 9.80, 9.590, 9.600 80: 1.910

Copyright Act 1968: 8.50, 8.550, 8.810 s 131B(2)(a): 8.550, 9.30

Crimes Act 1914 s s s s s

15AA(3A): 3.290, 4.210 16A: 6.1130 16A(2)(g): 6.680 16A(2)(p): 6.740 16A(m): 6.1130

s 19B: 8.720 s 20C(1): 3.20 s 21D: 6.1740

Criminal Code Act 1995: 9.100 s 400(1): 9.130 Sch Sch: 9.100

Evidence Act 1995: 9.100 Extradition Act 1988: 8.820 s 12(1): 8.820 s 15(6): 8.840 s 16: 8.880 s 16(1): 8.820 s 19: 8.820, 8.840, 8.870, 8.890

s s s s s s s s s s s s s s s s s s s

19(9): 8.840 19(10): 8.840 21: 8.870, 8.890 21(1): 8.840 21(2A)(a): 8.840 21(2A)(b): 8.840 21(2B): 8.840 21(3): 8.850 21(5): 8.860 21(6)(d): 8.870 21A: 8.870 21A(2): 8.870 21A(3): 8.870 21A(4): 8.870 22: 8.820, 8.880 22(2): 8.890 22(3)(b): 8.890 23: 8.880 45B: 8.840

Extradition and Mutual Assistance in Criminal Law Matters Legislation Amendment Act 2012: 8.820 Federal Court Rules 2011 r 35.11: 8.220 r 35.12(1): 8.170 r 35.12(2): 8.170 r 35.13: 8.190 r 35.14: 8.200 r 35.15: 8.210 r 35.16: 8.200, 8.210 r 35.18: 8.170, 8.230 r 35.19: 8.170, 8.240 r 35.20: 8.230 r 35.31: 8.250 r 35.31(4): 8.470 r 35.51: 8.370 r 35.51(3): 8.370 rr 35.51 to 36.54: 8.370 r 35.54(b)(i): 8.370 r 36.01: 8.290 r 36.01(1): 8.290 r 36.02: 8.290, 8.320, 8.350 r 36.03: 8.300 r 36.04(1): 8.330 r 36.05: 8.310 r 36.08(1): 8.360 r 36.08(2): 8.360 r 36.42: 8.390

xlvi Table of Statutes Federal Court Rules 2011 — cont r 36.51(1): 8.760 r 36.52: 8.370 r 36.52(4): 8.370 r 36.55(2): 8.390, 8.400, 8.410 r 36.55(3): 8.420 r 36.56: 8.420 r 36.57: 8.380 r 36.72: 8.340 r 36.73: 8.430 r 36.73(1): 8.430 r 36.73(4): 8.470 r 37.01: 8.440 r 37.02: 8.450 r 38.01: 8.610 r 38.01(1): 8.610 r 38.01(2): 8.610 r 38.02: 8.610 Div 36.5: 8.370 Form 67: 8.310 Form 117: 8.170 Form 118: 8.200 Form 119: 8.230 Form 120: 8.250 Form 122: 8.290 Form 125: 8.340 Form 126: 8.430

Federal Court of Australia Act 1976: 8.20 s 3: 8.640 s 4: 8.50 s 19: 8.880 s 21: 8.880 s 23: 8.880 s 23AB: 8.50 s 23AB(2): 8.50 s 23AB(4): 8.50 s 24: 8.810 s 25(5): 8.640 s 25(6): 8.610 s 27: 8.380 s 30AA: 8.30, 8.140, 8.520, 8.580 s 30AA(1): 8.40 s 30AA(1)(b): 8.510, 8.550, 8.560 s 30AA(1)(c): 8.480, 8.500 s 30AA(1)(d): 8.120 s 30AA(2): 8.640, 8.670, 8.730 s 30AA(3): 8.600 s 30AA(4): 8.600 ss 30AA to 30DA: 8.20 s 30AB: 8.510, 8.650 s 30AB(1): 8.60, 8.560 s 30AB(2): 8.60 s 30AC: 8.510, 8.660, 8.700 s 30AC(1): 8.70, 8.570, 8.670 s 30AC(2): 8.70 s 30AD: 8.110 s 30AE(1): 8.540

s 30AE(2): 8.220, 8.540, 8.650 s 30AF(1): 8.110 s 30AF(2): 8.190 s 30AF(3): 8.200 s 30AG: 8.780 s 30AH: 8.180, 8.790 s 30AI: 8.460, 8.800 s 30AI(1)(c): 8.800 s 30AJ: 8.490 s 30AJ(1): 8.80, 8.90, 8.680 s 30AJ(1)(a): 8.90 s 30AJ(1)(c): 8.90 s 30AJ(2): 8.90, 8.680 s 30AJ(3): 8.520, 8.580, 8.710 s 30AJ(4): 8.130, 8.740 s 30AJ(5): 8.110 s 30AK: 8.360 s 30AL: 8.260 s 30BB: 8.100 s 30BC(2): 8.530, 8.590 s 30BD: 8.500 s 30BE: 8.140 s 30BF: 8.720, 8.750 s 30BF(2): 8.690 s 30BF(4): 8.720 s 30BF(5): 8.730 s 30BG(2): 8.260, 8.600 s 30BG(3): 8.600 s 30CA(1): 8.610 s 30CA(4): 8.610 s 30CA(4)(b): 8.610 s 30CB: 8.620 s 30DA: 8.470 s 32: 8.550 s 32(4): 8.30 s 33: 9.30 Pt 111, Div 2A: 8.20 Div 2A: 0.30, 8.30

Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009: 8.20 High Court Amendment (2016 Measures No 1) Rules 2016: 9.140, 9.160, 9.250, 10.330

High Court Rules 2004: 9.140 s 73: 9.330, 9.570 r 1.04: 9.600 r 5.01: 9.320 r 5.02: 9.320 r 25.06: 9.590 r 25.07: 9.590 r 25.09: 9.590 r 25.20: 9.590 r 26.01: 9.600 r 27.08: 9.600

Table of Statutes xlvii High Court Rules 2004 — cont r 40.01: 10.340 r 41.01.1: 9.160, 9.290, r 41.01.2: 9.160 r 41.01.3: 9.160 r 41.01.4: 9.160, 9.180, 9.220, 9.290 r 41.01.5: 9.290 r 41.02.1: 9.170, 9.220, 9.290 r 41.02.2: 9.170, 9.220, 9.290 r 41.02.3: 9.160, 9.290 r 41.03.1: 9.180, 9.290 rr 41.03.1: 9.240 r 41.03.2: 9.180, 9.290 rr 41.03.2: 9.240 r 41.03.3: 9.180, 9.290 r 41.04(a): 9.190 r 41.04.(b): 9.190 r 41.05.1: 9.200 r 41.05.2: 9.200 r 41.05.3: 9.200, r 41.05.5: 9.200 r 41.06.1: 9.210 r 41.06.2: 9.210 r 41.06.3: 9.210 r 41.07.1: 9.220 r 41.07.2: 9.220 r 41.07.3: 9.220 r 41.07.3(b): 9.220 r 41.07.5: 9.220 r 41.07.6: 9.220 r 41.07.7: 9.220 r 41.08.1: 9.250, 9.300 r 41.08.2: 9.260 r 41.09.1: 9.240 r 41.09.2: 9.240 r 41.10.2: 9.290 r 41.10.3: 9.290 r 41.11: 9.230, 10.340 r 41.11.3: 9.260, 10.340 r 41.13.2: 9.240 r 42.01: 9.360 r 42.02.1: 9.360 r 42.02.2: 9.360 r 42.03: 9.370, 9.390 r 42.04: 9.380 r 42.05.1: 9.390 r 42.05.2: 9.390 r 42.05.3: 9.390 r 42.05.4: 9.390 r 42.05.5: 9.390 r 42.06.1: 9.400 r 42.09: 9.310 r 42.10: 9.360, 9.410 r 42.10.1: 9.360 r 42.10.2: 9.360 r 42.11.1: 9.410 r 42.11.2: 9.410 r 42.11.3: 9.410

r 42.12: 9.430, 9.440 r 42.12.1: 9.420 r 42.12.2: 9.420 r 42.12.3: 9.420 r 42.12.4: 9.420 r 42.12.7: 9.420 r 42.13.1: 9.430 rr 42.13.1 to 42.13.8: 9.220 r 42.13.6: 9.430 r 42.13.7: 9.430 r 42.13.8(b): 9.430 r 42.13.9: 9.430 r 42.13.10: 9.430 r 42.13.11: 9.430 r 42.13.12: 9.430 r 42.13.13: 9.430 r 42.13.15: 9.440 r 42.13.16: 9.440 r 42.14.1: 9.450 r 42.15.1: 9.460 r 42.15.2: 9.460 r 42.16.1: 9.470 r 44.02: 9.260, 9.480 r 44.03: 9.490 r 44.04: 9.500 r 44.04.2: 9.500 r 44.04.3: 9.500 r 44.05.1: 9.510 r 44.05.5: 9.510 r 44.06.1: 9.520 r 44.06.2: 9.520 r 44.07: 9.530 r 44.08.1: 9.540 r 44.08.2: 9.540 r 50.01: 9.580 Pt 2: 9.50 Pt 3: 9.600 Pt 12: 9.590 Pt 25: 9.590 Pt 26: 9.140 Pt 41: 9.140, 10.330 Pt 43: 9.30 Pt 44: 9.140, 9.260, 10.330 Sch 1: 9.140 Sch 1, Form 7: 9.190, 9.400 Sch 1, Form 8: 9.190, 9.400 Sch 1, Form 13: 9.590 Sch 1, Form 14: 9.590 Sch 1, Form 15: 9.590 Sch 1, Form 16: 9.590 Sch 1, Form 17: 9.600 Sch 1, Form 18: 9.160 Sch 1, Form 23: 9.160, 9.290, 9.640, 10.330 Sch 1, Form 23A: 9.200, 9.640, 10.330 Sch 1, Form 24: 9.160, 9.360 Sch 1, Form 25: 9.240, 9.450 Sch 1, Form 27A: 9.260, 9.480

xlviii

Table of Statutes

High Court Rules 2004 — cont Sch 1, Form 27B: 9.480 Sch 1, Form 27C: 9.500 Sch 1, Form 27D: 9.490 Sch 1, Form 27E: 9.510 Sch 1, Form 27F: 9.540, 10.330

Judiciary Act 1903 s 18: 9.600 s 26: 9.580 s 30(a): 9.590, 9.600 s 34(1): 9.30 s 34(2): 9.30 s 35: 9.90, 9.100 s 35(1): 9.90 s 35A: 0.20, 9.60, 9.100, 10.330 s 35A(a): 9.100 s 35AA: 9.90 s 36: 9.120 s 37: 9.120 s 39B: 8.830 s 39B(1A): 8.880 s 39B(1B): 1.910 s 39B(1): 1.910 s 40: 9.600 s 68: 1.910, 3.20, 4.20, 6.1390, 8.180 s 68(1): 1.910, 8.790 s 68(2): 0.20, 1.910 s 72(1A): 6.1390 s 72(2): 6.1390 s 73: 6.1390 s 76: 6.1390 s 78: 9.90 s 78A: 1.920, 9.320 Pt X, Div 3: 6.1390

Nauru (High Court Appeals) Act 1976: 9.30

Service and Execution of Process Act 1992: 8.820 Trade Marks Act 1974: 8.50, 8.550

New South Wales Crimes (Appeal and Review) Act 2001 s 18(1): 4.60

Criminal Appeal Act 1917 s 6: 0.30

Evidence Act 1995: 9.100

Northern Territory Criminal Code s 411: 0.30

Queensland Criminal Code 1899 s 668E: 0.30

Vicious Lawless Association Disestablishment Act 2013: 9.600

South Australia Criminal Law Consolidation Act 1935 s 353(1): 0.30 s 353A: 0.40, 6.1710

Magistrates Court Act 1991 s 43A: 6.1710

Tasmania Criminal Code Act 1924 s 401(2): 9.70 s 402(1): 0.30 s 402A: 6.1710 Sch 1: 0.30 Sch 1, s 402A: 0.40

Victoria

Trade Practices Act 1974: 8.20 Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009: 8.20

Australian Capital Territory Human Rights Act 2004: 0.20, 0.30, 2.10

Administrative Law Act 1978 s 10: 7.260

Appeal Costs Act 1998: 7.700 s s s s s

14: 6.580 15A: 1.690, 5.470 15B: 1.690, 5.470 15C: 1.700, 6.1460 19(1): 2.160

Supreme Court Act 1933 s 37O(2): 0.30 s 37O(3): 0.30

Bail Act 1977: 2.200, 3.250, 3.290, 4.170, 6.1580

Table of Statutes xlix Bail Act 1977 — cont s 4(2)(aa): 2.200 s 5: 2.200 s 13: 6.1580 s 18: 3.260, 3.270, 4.180, 4.190 s 18A: 3.290, 4.210 s 18A(2): 3.290, 4.210 s 18A(6): 3.290, 4.210 s 18A(12): 3.290, 4.210 s 18AA(1): 3.260, 4.180 s 18AA(2): 3.270, 4.190 s 18AB: 3.260, 4.180 s 18AC: 3.280, 4.200 s 18AC(4): 3.280, 4.200 s 18AE: 3.300, 4.220 s 18AG: 3.300, 4.220 s 18AH: 3.270, 3.280, 4.190, 4.200 s 24: 3.300, 4.220 s 24(4): 3.300, 4.220

Bail Act Regulations 2012 Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form

4B: 3.480, 3.540 4C: 3.340 4D: 3.340 4E: 3.350 4F: 3.320, 3.560 6: 3.200 6-2C: 3.370 6-3-BH: 3.350 6-3B1: 3.320 6-3BB: 3.320 6-3BC: 3.480 6-3BD: 3.540 6-3BE: 3.340 6-3BF: 3.340 6-3BG: 3.350 6-38H: 3.350 11: 3.260, 3.280, 4.180, 4.200 11A: 3.280, 4.200 12: 3.280, 4.200 13: 3.300, 4.220

Bail Amendment Act 2013: 2.200 Charter of Human Rights and Responsibilities Act 2006: 0.30, 0.60, 1.20, 1.660, 1.920, 2.10, 5.450, 6.1580, 7.580, 9.580 s 1(2): 2.30, 2.40 s 1(2)(b): 2.10 ss 1 to 31: 2.20 s 3: 2.10, 2.50 s 4(1): 2.50 s 4(1)(c): 2.50 s 4(1)(i): 2.50 s 4(1)(j): 2.50 s 4(2): 2.50 s 5: 2.60

6(1): 2.40, 2.60 6(2): 2.40 6(2)(b): 2.290 6(3): 2.40 6(4): 2.40 7: 2.70 7(2): 2.10, 2.60, 2.70, 2.100, 2.120, 2.130, 2.140, 2.200, 2.240, 2.250, 2.260, 2.270, 2.280, 2.310, 2.320 s 8: 2.220, 2.290 s 8(1): 2.60 s 8(2): 2.60 s 8(3): 2.60, 2.290 s 9: 2.60 s 10: 2.60, 2.220 s 10(b): 2.220 s 11: 2.60 s 12: 2.60, 2.200, 2.270 s 13: 2.10, 2.60, 2.260 s 13(a): 2.260, 2.270 s 14: 2.60 s 15: 2.10, 2.60, 2.70, 2.210 s 15(2): 2.210 s 15(3): 2.210 s 16: 2.60 s 17: 2.60 s 18: 2.60 s 19: 2.60 s 20: 2.60, 2.70 s 21: 2.60, 2.290, 6.1580 s 21(1): 2.70 ss 21(1) to (8): 2.60 s 21(3): 2.200 s 21(5): 2.200 s 21(5)(b): 2.200 s 21(5)(c): 2.200 s 21(6): 2.200 s 22: 2.60 s 23: 2.60 s 24: 2.60, 2.280, 2.290 s 24(1): 2.70, 2.240, 2.250, 2.280, 2.290, s s s s s s s

2.300 s 24(2): 2.70, 2.280 s 24(3): 2.280 s 25: 2.60, 2.120, 2.130, 2.230, 2.240 s 25(1): 2.250 ss 25(1) to (4): 2.60 s 25(2): 2.230 s 25(2)(c): 2.200 s 25(2)(d): 2.250 s 25(2)(d)(e): 2.230 s 25(2)(f): 2.230, 2.250 s 25(2)(k): 2.310 s 25(4): 0.10, 0.20, 0.30, 1.20, 2.10, 2.170 ss 25(d) to (f): 2.230 s 26: 2.606.870, s 27: 2.60, 6.840

l

Table of Statutes

Charter of Human Rights and Responsibilities Act 2006 — cont s 30: 2.10 s 31: 2.10 s 32: 2.100, 2.140, 2.150, 2.290, 2.310 s 32(1): 2.10, 2.100, 2.120, 2.130, 2.140, 2.150, 2.200, 2.250, 2.260, 2.270,

2.320 s 33: 1.20, 2.10, 2.130, 2.160, 6.1480 s 33(1): 0.20, 2.160, 2.250 s 33(3): 2.160 s 33(4): 2.160 s 34: 1.920, 7.580 s 35: 2.160, 2.210, 7.580 s 35(1): 2.160 s 36: 2.120, 2.130, 2.150 s 36(1): 2.10 s 36(1)(c): 2.10 s 36(2): 2.70, 2.150 s 36(4): 2.150 s 36(5): 2.150 s 37: 2.130, 2.150 s 38: 2.50, 2.90, 2.220, 2.270, 2.290, 2.320 s 38(1): 2.50, 2.80, 2.200, 2.220 s 39: 2.90, 2.320 s 39(1): 2.80, 2.200 s 39(3): 2.80 ss 40 to 49: 2.20 s 44(1): 2.10 s 45(1): 2.10 s 49(2): 2.240 s 71AC: 2.120 s 73: 9.590 s 109: 2.220 Pt 2: 2.40, 2.60, 2.320 Pt 3, Div 1: 2.40 Pt 3, Div 2: 2.40 Pt 3, Div 3: 2.40 Pt 3, Div 4: 2.40

Charter of Human Rights and Responsibilities (General) Regulations 2007 reg 5: 2.160 reg 6: 2.130

Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013 reg 5: 2.50

Children’s Court Criminal Procedure Rules 2009 O 3.02: 3.220

Children, Youth and Families Act 2005: 1.880

s 3: 3.30, 3.80 s 3(1): 3.40, 3.50 s 3(a): 3.20 s 344A(1): 3.200 s 344A(2): 3.200 s 344B(1): 3.200 s 344B(4): 3.200 s 344C(1): 3.200 s 344C(3): 3.200 s 344D(1): 3.200 s 356(3): 3.20 s 356(3)(b): 3.20 s 360: 3.40 s 362A: 6.680 s 363: 3.80 s 365: 3.80 s 367: 3.80 s 424: 3.30 s 425(1): 3.220 s 425(2): 3.230 s 426: 3.60, 3.370 s 426(2): 3.70 s 426(2)(a): 3.60 s 426(3): 3.310 s 426(4): 3.70, 3.220 s 426(5): 3.70 s 426(6): 3.80 s 426(9): 3.80 s 427: 1.900, 3.450, 3.470, 3.490, 3.510, 3.540, 3.620 s 427(1): 3.450 s 427(2): 3.450 s 428: 3.490 s 428(2): 3.480 s 428(3): 3.480 s 428(4): 3.480 s 429: 3.370 s 429(1): 3.500 s 429(1)(a): 3.530 s 429(2): 3.470 s 429(6): 3.470 s 429(7): 3.470 s 429(8): 3.470 s 429A: 3.510, 3.530, 3.540 s 429A(2): 3.520 s 429B(1): 3.540 s 429C: 3.370, 3.520 s 429C(2): 3.530 s 429E(1): 3.550 s 430: 3.240 s 430(1): 3.240, 3.490 s 430(2): 3.490 s 430(3): 3.240 s 430(5): 3.240 s 430A: 3.330 s 430B: 3.330 s 430B(1): 3.250

Table of Statutes li Children, Youth and Families Act 2005 — cont s 430B(1)(b): 3.250 s 430C(6A): 3.340 s 430C(1): 3.340 s 430C(3): 3.340 s 430C(6): 3.310, 3.340 s 430C(7): 3.340 s 430D(1A): 3.350 s 430D(1): 3.350 s 430F: 3.220 s 430G: 3.10 s 430I: 3.360 s 430N: 3.360 s 430P: 7.10, 7.20, 7.30, 7.70, 7.370, 7.930, 7.940, 7.960, 7.980 s 430P(1): 1.950, 3.570 s 430P(2): 7.20 s 430P(4): 7.70 s 430P(7): 7.70 s 430P(8): 7.70 s 430P(9): 3.570, 7.680 s 430Q: 3.570 s 430 R: 3.370 s 430R: 3.370 s 430R(1): 3.390 s 430S: 3.330, 3.370 s 430T(1): 3.380 s 430T(3): 3.380 s 430U(2): 3.400 s 430U(5): 3.400 s 430W: 3.440 s 430W(2): 3.440 s 430W(4): 3.440 s 430X(1): 3.330 s 430X(2): 3.330 s 430Y(1): 3.390 s 430VA: 3.410 s 430VB: 3.410 s 430VC: 3.420 s 430VC(2): 3.420 s 430VD: 3.430 s 430VF: 3.430 s 430ZB: 3.30 s 430ZH: 3.590 s 508(2): 3.20 s 516(1): 3.20 s 516(5): 3.20 s 528(1): 3.20 s 528(2): 3.200 Ch 5, Pt 5.4: 3.10 Pt 5.2, Div 1: 3.250 Pt 5.3: 3.50 Pt 5.4, Div 1: 7.20

Civil Procedure Act 2010 s 29: 7.10 s 62: 7.600 s 63: 7.600

Pt 2.3: 7.10 Pt 4.4: 7.530, 7.600 Pt 4.5: 7.700

Confiscation Act 1997: 6.480 Constitution Act 1975: 1.870 s s s s

75: 1.870 75(2): 1.870 75(3): 1.870 85(1): 1.870

Constitution (Court of Appeal) Act 1994 s 75A: 1.870

Control of Weapons Act 1990 s 5AB(2): 6.60

County Court Act 1958 s 4D(1): 4.120 s 4D(2): 4.120 s 4E: 4.120 s 17M: 4.110 s 78: 0.30 Pt 1, Div 3B: 4.110

County Court Criminal Procedure Rules 2009 r 2.11: 5.70 r 3.02: 4.70, 4.140 r 3.02(1): 4.140 r 3.02(2): 4.140 r 3.02(3): 4.140 r 3.03: 4.400 r 3.03(1): 4.400 r 3.03(1A): 4.460 r 3.03(2): 4.460 r 3.04: 4.140, 4.460 r 3.05: 4.250 r 3.06: 4.250 r 3.07: 4.260 r 4.01(a): 3.220 r 4.02: 3.220 r 4.02(1): 3.220 r 4.02(1A): 3.130, 3.150, 3.180 r 4.03: 3.540 r 4.03.1: 3.180, 3.190 r 4.03(1): 3.480 r 4.04: 3.220 r 4.05: 3.340 r 4.06: 3.340 r 4.07: 3.350 r 4.8: 3.560 Form 2H: 5.70 Form 3A: 4.140 Form 3B: 4.140 Form 3C: 4.400, 4.460

lii

Table of Statutes

County Court Criminal Procedure Rules 2009 — cont 2009 — cont Form 3D: 4.250, 4.540 Form 3E: 4.250, 4.540 Form 3F: 4.260 Form 4: 3.200 Form 4A: 3.130, 3.150, 3.180, 3.220 Form 4BA: 3.180, 3.190

Courts Legislation Miscellaneous Amendments Act 2014 ss 3 to 8: 7.730 s 4: 7.730

Crimes Act 1890: 1.590 s 458: 1.430

Crimes Act 1915: 1.40, 1.600 Crimes Act 1958: 1.600 s s s s s s s s s s s s s s s s s s s s s s

39: 6.1470 48: 6.1470 57(1): 2.260 197: 2.210 197(1): 2.210 199: 2.210 199(a)(1): 2.210 199(a)(ii): 2.210 446: 1.700 446(1): 1.700 567: 1.620, 6.160 567A: 7.70, 7.370 568(1): 1.630 568(1)(b): 6.110 568(4): 1.640 569(1): 6.230 570A: 6.250, 6.290 570B: 6.290 570C: 6.250 574: 1.720 580(2): 1.660 584: 6.1730

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: 0.40, 1.880, 3.90, 3.140, 4.80 s s s s s s s s s s s s

5(1): 4.80 5(2): 4.80 5A(1): 3.90 6(1): 6.250 8(1): 4.80 8(2)(b): 4.80 9(1): 6.250 12(1): 6.250 12(2): 6.250 12(5): 6.250 14A: 6.250 14A(1): 6.250

s 14A(2): 6.260 s 14A(4): 6.270 ss 14A(4) to (5): 6.270 ss 14A(6) to (9): 6.280 s 14A(7): 6.280 s 17: 6.250 s 20: 6.290 s 20(1): 6.290 s 20(2): 4.80 s 21(4): 6.290 s 23: 6.200, 6.210 s 23(b): 6.320 s 24A: 6.320 s 24AA(1): 8.120 s 24A(1A): 6.320 s 24A(1B): 6.320 s 24A(2): 6.320 s 24A(3): 6.320 s 24AA: 6.290, 6.310 s 24AA(1): 6.290 s 24AA(3): 6.260, 6.290 s 24AA(4): 6.300 ss 24AA(4) to (6): 6.300 s 24AA(4) to 276: 6.300 s 24AA(7): 6.310 ss 24AA(7) to (9): 6.310 s 24AA(8): 6.310 s 26(2)(a): 6.200 s 26(2)(b): 6.200 s 28A(1): 6.330 s 28A(2): 6.330 s 28A(3): 6.330 s 28A(5): 6.330 s 28A(6): 6.330 s 34(1): 6.330 s 34(2): 6.330 s 34(3): 6.330 s 34A(1): 6.340 s 34A(2): 6.340 s 34A(3): 6.340 s 38K(1): 3.90 s 38N(1): 3.90 s 38P: 3.90 s 38Q(1): 3.90 s 38Q(3): 3.90 s 38R(2): 3.90 s 38R(3): 3.90 s 38U(1): 3.100 s 38U(2): 3.130 s 38U(6): 3.110 s 38U(8): 3.120 s 38U(9): 3.120 s 38V: 3.90 s 38Y: 3.120 s 38Y(1): 3.90 s 38Y(2): 3.90 s 38Y(3): 3.90

Table of Statutes Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 — cont s 38Y(4): 3.90 s 38ZA (1): 3.140 s 38ZD: 3.140 s 38ZD(1)(b): 3.190 s 38ZE: 3.150 s 38ZE(1): 3.170 s 38ZE(6): 3.160 s 38ZE(9): 3.170 s 38ZE(11): 3.170 s 38ZF(1): 3.190, 3.630 s 38ZF(8): 3.190 s 38ZJ(1): 3.180 s 38ZJ(2): 3.180, 3.630 s 38ZAA(1): 3.630 s 47: 6.330 Pt 5: 6.200 Pt 5A: 3.90 Div 4: 3.140

Criminal Appeal Act 1914: 1.370, 1.450, 1.510, 1.600, 1.610 s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s

2: 1.380 3: 1.380 4(1): 1.390, 1.630 4(2): 1.400 4(3): 1.400 4(4): 1.400 5(1): 1.410 5(2): 1.420 5(4): 1.430 6(1): 1.440 6(2): 1.440 7(1): 1.460 7(2): 1.440 8: 1.470 9: 1.400, 1.480 10: 1.490 11: 1.500 12: 1.510 13(1): 1.520 13(2): 1.520 14(1): 1.530 14(2): 1.530 14(3): 1.530 15(1): 1.540 15(2): 1.540 15(4): 1.540 15(5): 1.540, 1.660 16(1): 1.540 17: 1.380, 1.550 18: 1.560 19: 1.570 20: 1.580 20(2): 1.590

liii

Criminal Procedure Act 2009: 0.20, 0.30, 1.40, 1.600, 1.610, 1.660, 1.680, 1.690, 1.700, 1.710, 1.830, 1.880, 1.900, 2.170, 3.10, 5.10 s 315(2: 6.430 s 3: 0.20, 1.790, 5.40, 5.50, 5.520, 6.30, 6.40, 6.610 s 3(1): 4.40, 4.50 s 3(1)(b): 4.50 s 6(1)(a): 7.40 s 6.3: 5.470 s 16: 6.530 s 18: 4.540, 4.580, 7.140 s 28: 4.20 s 88: 3.200, 4.90 s 89: 4.90 s 90: 4.100 s 91(1): 4.100 s 91(2): 4.100 s 92: 4.90 s 93: 4.100 s 94: 4.90 s 161: 6.1570 s 197: 2.250, 5.130 s 210: 5.40 s 210(1): 6.1390 s 254: 4.30, 4.110, 4.140, 4.500, 7.20, 7.40,

7.290 s s s s s s s s s s s s s s s s s s s s s s s s s s s s s

255: 4.140 255(1): 4.140, 4.410 255(2): 4.150 255(3): 4.140 255(4): 4.140 255(5): 4.140 255(6)(a): 4.140 256: 4.70, 4.270 256(1): 4.60 256(2): 4.70 256(2)(a): 4.230 256(3): 1.670, 4.230 256(4): 4.70 256(5): 4.70 257: 1.900, 4.370, 4.390, 4.430, 4.550 257(1): 4.320 257(2): 4.370 258: 4.410 258(1): 4.400 258(3): 4.400 258(4): 4.400 259: 4.270 259(1): 4.60, 4.420 259(2): 4.390 259(3): 4.390 259(4): 4.390 259(5): 4.390 260: 4.430, 4.450, 4.470, 4.500, 4.550 260(1): 4.430

liv Table of Statutes Criminal Procedure Act 2009 — cont s 260(1)(a): 4.450 s 260(2): 4.430 s 261(2): 4.460 s 262: 4.270 s 262(1): 4.440 s 262(2): 4.450 s 262(3): 4.450 s 263(1): 4.160, 4.410 s 263(2): 4.160, 4.410 s 263(3): 4.160, 4.410 s 263(4): 4.160 s 263(5): 4.160 s 264(1): 4.240 s 264(2): 4.240 s 265: 4.240 s 265(1): 4.170 s 265(1)(b): 4.170 s 265(2): 4.170 s 266(1): 4.250 s 266(2): 4.250 s 266(3): 4.250 s 266(4): 4.230, 6.600 s 266(5): 4.230 s 266(5)(a): 4.230 s 266(6): 6.600 s 267(1): 4.260 s 267(1A): 4.260 s 267(3): 4.260 s 268(1): 4.470 s 272: 4.110, 4.480, 7.10, 7.20, 7.30, 7.40, 7.370, 7.410, 7.930, 7.940, 7.960,

7.980 272(1): 1.950, 4.480, 7.20, 7.930 272(2): 4.480, 7.20 272(3): 7.70 272(4): 7.70 272(5)(a): 7.180 272(6): 7.230 272(7)(8): 7.70 272(8): 7.70 272(9): 7.680 272(11): 7.230 273: 2.170, 4.30, 7.20 274: 1.620, 6.20, 6.30, 6.70, 6.110, 10.60 275(1): 6.370, 6.410 275(2): 6.400, 6.1010 276: 0.30, 1.630, 6.80, 6.110, 6.270, 6.370, 6.530, 8.90, 10.130 s 276(1): 0.30, 1.630, 3.160, 6.70, 6.110, s s s s s s s s s s s s s s s

10.100 s 276(1)(a): 6.80, 6.110, 6.140, 10.110 s 276(1)(b): 6.110, 6.120, 6.130, 6.140, 10.130, 10.150 s 276(1)(c): 6.110, 6.130, 6.140, 10.130,

10.150 s 276(2): 10.100 s 276(a): 10.130

s s s s s s s s s s s s s s

276(b): 10.130 276(c): 10.130 277: 6.160, 6.230 277(1): 6.160, 6.310, 6.1590 277(1)(a): 6.170 277(1)(b): 6.170 277(1)(c): 6.60, 6.180 277(1)(d): 6.190 277(1)(e): 6.200 277(1)(f): 6.210 277(2): 6.220, 6.570 277(3): 6.230 277(5): 6.240 278: 1.650, 6.610, 6.1330, 8.520, 10.60,

s s s s s s s s s s s s s s s s s s s s s s

279: 6.980 279(2): 6.400, 6.1010 280: 1.650, 6.1050, 10.80, 10.90 280(1): 1.650, 6.1050, 10.70 280(1)(b): 6.1050 280(2): 6.1050 280(3): 1.650, 6.1050 281: 6.630, 6.640, 6.980, 8.580, 10.180 281(1): 1.640, 10.180 281(2): 6.1130, 10.180 281(3): 1.670, 6.630 282: 6.1110 283: 1.670, 4.270, 4.310, 4.560, 7.290 283(2): 4.270 284(2): 4.310 284A(1): 4.280 285: 1.640, 4.290 285(3): 4.290 286: 4.300 286(1): 1.30 286(2): 4.300 287: 1.680, 1.900, 6.1120, 6.1220, 7.70,

10.180

7.370 288: 6.1190 288(1): 6.1190 288(2): 6.1190 288(3): 6.1190 288(4): 6.1190 289: 1.640, 1.680, 6.1130, 10.180 289(1)(a): 6.1130 289(1)(b): 6.1130 289(2): 1.680, 6.1130, 6.1180 290(1): 6.1180 291: 6.1220, 6.1250 292(1): 6.1250 292(3): 6.1250 292(4): 6.1250 293: 6.1230 294: 6.1240 295: 3.410, 4.330, 5.20, 5.40, 5.100, 5.180, 5.500, 5.520, 6.1470, 7.300 s 295(1): 0.20

s s s s s s s s s s s s s s s s s

Table of Statutes lv Criminal Procedure Act 2009 — cont s 295(3): 5.70, 5.100, 5.200, 5.280, 5.500, 5.510, 5.520, 6.1470 s 295(3)(a): 5.90 s 295(3)(b): 5.100 s 295(3)(c): 5.100 s 295(4): 5.70 ss 295 to 301: 10.320 s 296: 5.200, 5.510 s 296(1): 5.110 s 296(2): 5.210, 5.230, 5.520 s 296(3): 5.240, 5.400, 5.520 s 296(4): 5.100, 5.280, 5.520 s 297: 1.700, 5.280, 5.400, 5.410, 5.520,

9.100 s 297(1): 5.130 s 297(2): 5.130 s 297(3): 5.160, 5.420 s 298: 5.300 s 298(1): 5.340, 5.520 s 298(2): 5.360, 5.520 s 299: 5.430 s 300(1): 5.170, 5.440, 10.320 s 300(2): 5.180 s 300(3): 5.180 s 301: 5.480 s 302: 1.700, 2.160, 5.520, 6.1390, 6.1470 s 302(1): 2.160, 6.1390, 6.1400, 8.610 s 302(2): 6.680, 6.1390 ss 302(2)(a) to (b): 1.700 s 302(b): 6.1390 s 302A: 4.330, 6.1390 s 302A(b): 6.1390 s 303: 6.1410 s 303(2): 4.330 s 304: 4.340, 5.520, 6.1420, 6.1460 s 304(2): 6.1460 s 305: 1.700, 4.350, 6.1430 s 305(2): 4.350 s 306: 6.1440 s 307: 4.350, 6.1450 s 308: 1.860, 6.1490, 8.620 s 308(1): 4.360 s 308(2): 4.360 s 308(3): 6.1500 s 308(4): 4.360, 6.1490 s 309(1): 1.710, 6.1020 s 309(2): 1.710, 6.1020 s 310: 6.540 s 311(1): 1.710 s 311(4): 6.1020 s 312: 1.710 s 312(1): 6.480 s 313: 4.320, 5.230, 5.240, 5.340, 5.500, 5.520, 6.370, 6.420, 6.980 s 313(1): 6.420, 6.430 s 313(2): 6.430, 6.1190 s 314: 6.590

s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s

315: 6.1040 315(1): 6.410, 6.440 315(1)(a): 4.270, 5.330, 6.1050 315(1)(b): 5.250 315(1)(d): 5.350 315(2): 1.650, 5.110, 5.250, 5.330, 5.350, 6.410, 6.460, 6.1070, 10.90 316: 6.490 317: 6.150 318: 6.150 319: 6.150 321: 6.1200 321(1): 1.720 321(2): 6.1200 321(3): 6.1200 323: 6.160, 6.570 325: 6.570 327: 0.20, 6.1730, 6.1740 327(1): 1.990, 6.1730 327(1)(a): 1.990, 6.1730 327(2): 6.1740 327(3): 6.1670, 6.1740 327(4): 6.1740 327(6): 6.1560 327(7): 6.1560 327A(1): 6.1520 327A(2): 6.1520 327A(3): 6.1520 327B: 6.1640 327C(1)(a): 6.1650 327C(1)(b): 6.1650 327D: 6.1640 327E: 6.1540 327E(1): 6.1540 327E(2): 6.1540 327E(3): 6.1540 327E(4): 6.1550 327E(4)(b): 6.1550 327E(5): 6.1560 327E(6): 6.1560 327E(8): 6.1560 327F: 6.1570 327F(1): 6.1570 327F(2): 6.1570 327G: 6.1580 327H(1): 6.1590 327H(2): 6.1590 327H(4): 6.1600 327H(6): 6.1610 327H(8): 6.1610 327I(1): 6.1620 327I(2): 6.1620 327I(3): 6.1620 327J: 6.1590 327K: 6.1630 327L: 6.1640, 6.1670 327M: 6.1650, 6.1670

lvi Table of Statutes Criminal Procedure Act 2009 — cont s 327M(2): 6.1570, 6.1650 s 327N: 6.1660 s 327O: 1.780, 6.30, 6.1640, 6.1650, 6.1660,

6.1670 s 327O(2): 6.1670 s 327O(4): 6.1670 s 327P: 6.1680 s 327R: 6.1690 s 327S: 6.1520 s 329(1): 6.470 s 337: 1.700 s 372(4): 1.990 s 391: 7.130, 7.180, 7.440 s 391(2): 7.180 s 391(2)(c): 7.440 s 391(4): 7.190 s 392: 4.150, 4.580, 5.240, 7.130, 7.440 s 392(2): 7.140 s 392(2)(e): 7.140 s 393: 5.360 s 394: 5.240, 5.360 s 395(3)(a): 5.90 s 406(1): 4.500 s 406(2): 4.500 s 406(4): 4.500 s 407(1): 4.500 s 408: 3.590, 4.500 s 409: 6.580, 6.1460 s 409(c): 5.470 s 568(1): 1.630 Ch 5: 2.250 Ch 6: 2.250 Ch 6, Pt 6.1: 4.10 Ch 6, Pt 6.3: 6.20 Ch 7A: 6.1520, 6.1700 Pt 3: 4.50 Pt 3.3: 4.110, 7.40 Pt 3A: 4.50 Pt 3B: 4.50 Pt 3C: 4.50 Pt 3D: 4.50 Pt 3BA: 4.50 Pt 4: 4.50 Pt 5: 4.50 Pt 6.1: 4.330, 7.20 Pt 6.3: 6.1300 Pt 6.3, Div 4: 5.10, 5.520 Pt 6.3, Div 5: 5.520 Sch 2: 4.20 Sch 6: 6.350

Director of Public Prosecutions Act 1994 s 47: 1.940

Drugs, Poisons and Controlled Substances Act 1981 s 5: 2.110, 2.120, 2.130

s s s s

71A: 6.870 71AC: 2.110 71D: 6.870 73(2): 2.110

Evidence Act 2008: 10.170 s s s s s s s

20: 10.170 90: 2.260 98(1): 10.160 116: 10.170 123: 6.1470 137: 5.170 138: 2.260, 2.270

Evidence (Miscellaneous Provisions) Act 1958: 2.300 s 135: 7.60 s 165: 2.300

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 s 5: 2.300

Firearms Act 1996 s 5(1): 6.60

Infringements Act 2006 s s s s

72: 7.40 160: 2.290, 7.40 160(1): 2.290 160(2): 2.290

Interpretation of Legislation Act 1984 s 44(3): 7.70, 7.370 s 51(1): 6.870

Jury Directions Act 2013: 1.30, 6.530 s 15: 6.530

Jury Directions Act 2015: 0.30, 1.30, 6.510, 6.530, 10.170 s 3: 10.120 s 8: 10.170 s 9: 10.170 s 14: 10.170 s 15: 10.170 s 16: 6.530, 10.170 s 16(1): 6.530 s 16(2)(b): 6.530 ss 18 to 24: 10.170 ss 25 to 30: 10.170 s 31: 10.170 s 34: 10.170 ss 35 to 37: 10.170 ss 38 to 40: 10.170 ss 41 to 44: 10.170 ss 45 to 54: 10.170

Table of Statutes lvii Jury Directions Act 2015 — cont ss 55 to 60: 10.170 ss 61 to 64: 10.120, 10.170

Police Integrity Act 2008 s 40(4)(b)(i): 2.220

s 63: 10.120

Police Regulation Act 1958: 2.50

s 64: 10.120 ss 65 to 67: 10.170

Public Administration Act 2004: 2.50

s 70: 10.170 ss 70 to 77: 10.170 s 73: 10.170 Pt 4: 10.170 Pt 5: 10.170 Pt 6: 10.170 Pt 7: 10.170

Public Prosecutions Act 1994: 1.900 s s s s s s

22(1): 1.900 22(1)(cc): 1.910 22(b)(ii): 1.900 22(ba): 1.900 24(c): 1.900 47: 6.370

Legal Aid Act 1978 s 24: 2.230, 2.250 s 24(1): 2.230

Local Government Act 1989: 2.50 Magistrates’ Court Act 1989: 4.140 s 4(1): 4.20 s 16: 0.30 s 16I(b): 4.110 s 16J: 4.110 s 16K: 4.110, 7.20, 7.280 s 16K(2): 4.110 s 16K(3): 4.110 s 84: 4.320 s 88: 4.90 s 92: 4.480

Magistrates’ Court Criminal Procedure Rules 2009 r 31: 4.100 r 70: 4.140 r 70(1): 4.140 r 70(5): 4.140 r 71: 4.240 r 72: 4.160 r 73: 4.260 r 74: 4.480 Form 18: 4.100

Magistrates’ Court (Judicial Registrars) Rules 2005: 4.110 r 4(1): 4.110 r 7: 4.110 Form 1: 4.110

Major Crime (Investigative Powers) Act 2004: 2.310 s 39(1): 2.310 s 39(3): 2.310

Open Courts Act 2013: 2.280

Road Safety Act 1986 s s s s s s s s s s s

26(1): 4.20 26AA(1): 4.20 29: 3.330 29(2): 4.240 49(1)(b): 7.930 49(1)(f): 7.930 59: 2.270 59(1): 2.270 59(1)(a): 2.270 84S: 6.610 84T: 6.610

Sentencing Act 1991: 1.30, 1.710, 4.50, 6.820, 6.910, 6.920, 6.1320, 10.200 s 5: 6.760, 10.180, 10.220 s 5(1): 6.760, 10.200 s 5(1)(a): 6.770, 6.780 s 5(1)(b): 6.790 s 5(1)(c): 6.800, 10.220 s 5(1)(f): 6.760 s 5(2): 10.200 s 5(2)(a): 6.830 s 5(2)(b): 6.840 s 5(2)(c): 6.770 s 5(2)(d): 6.770, 10.220 s 5(2)(e): 6.680 s 5(2E): 6.680 s 5(2AB): 6.1210 s 5(3): 6.920 ss 5(3) to (7): 10.200 ss 5(4) to (7): 6.920 s 6D: 6.780 s 6E: 6.910 s 6AA: 6.1260 s 6AA(d): 6.1330 s 6AB: 6.1270 s 6AB(1): 0.20 s 6AB(1)(a): 6.1330 s 6AC: 6.1290 s 6AD: 6.1300 s 6AE: 6.1280, 6.1340

lviii Table of Statutes Sentencing Act 1991 — cont s 6AF: 6.1300 s 6AG: 6.1280 s 6AAA: 6.680 s 7: 10.220 ss 7 to 35: 6.610 s 8: 4.40, 6.40 s 11(1): 6.930 s 11(3): 6.930 s 11A: 10.200 s 14: 6.880 s 14(2)(b): 6.880 s 15: 6.880 s 16: 6.910 s 16(1): 6.910 s 16(1A): 6.910 s 16(2): 6.910 s 16(3): 6.910 s 16(3B): 6.910 s 16(3C): 6.910 s 16(4): 6.880 s 18: 6.890, 6.900 s 18(1): 6.890 s 18(2)(a): 6.890 s 18(2)(b): 6.890 s 18(2)(d): 6.890 s 18A: 6.820 s 18B: 6.820 s 45: 6.1360 s 76: 6.920 s 84: 6.1020 s 85B: 6.1020 s 86: 6.1020 s 104A: 4.50 s 104A(5A): 6.1055, 6.1110 s 104A(1): 6.600, 6.1055 s 104A(1)(a): 6.1055, 6.1110 s 104A(1)(b): 6.1055, 6.1110 s 104A(4): 6.600 s 104A(5): 6.600 s 104B: 4.50, 6.600 s 104B(6): 6.600 s 104D: 6.600 s 106: 6.1710, 6.1740 s 107: 6.1710 s 114: 6.840 Pt 2: 6.1280 Pt 3: 6.610 Pt 3A: 6.610 Pt 3B: 6.610 Pt 3C: 6.610 Pt 3D: 6.610 Pt 4: 6.610 Pt 5: 6.610

Sentencing Amendment (Baseline Sentences) Act 2014: 1.30

Serious Sex Offenders (Detention and Supervision) Act 2009: 6.820 Sex Offender’s Registration Act 2004 s 11: 6.610

Supreme Court Act 1986: 1.40, 1.100, 1.880 s s s s s s s s s s s s s s s s s s s s s s s s

3(6): 1.100 10(1)(a): 7.720 10(3): 7.910 10(ab): 1.870 11: 6.410 11(1B): 1.740 11(1C): 7.860 14: 7.720 14(3): 5.40 14A: 7.720, 7.730, 7.740 14A(3): 7.720 14B: 7.730 14B(1): 7.750 14C: 7.730, 7.740 14D: 7.730, 7.890 14D(1): 7.740 14D(3): 7.890 17A(3): 5.10, 5.40 18(1)(c): 6.1600 21: 1.970 25(1): 0.30 113E: 4.110 113O: 1.870 113P: 1.870

Supreme Court (Chapter 1 Judicial Review Amendment) Rules 2016: 0.30 Supreme Court (Criminal Procedure) Rules 2008: 3.220, 6.350, 6.590, 6.970, 6.1730 s 3.04: 5.510 r 1.06: 6.420 r 1.07: 6.370, 6.980 r 1.07(2): 6.370, 6.980 r 1.07(3): 6.370, 6.980 r 1.07(5): 6.370, 6.980 r 1.14: 6.600 r 1.15(2.1): 6.390 r 2.03: 1.740 r 2.05(1): 6.370 r 2.05(2): 6.980 r 2.05(3): 4.270, 4.560 r 2.05(4): 6.370, 6.380, 6.980, 6.990 r 2.06: 6.410, 6.1040 rr 2.06: 6.440 r 2.07(1): 6.440 r 2.07(2): 6.440, 6.1040, 6.1050 r 2.07(3): 6.450, 6.1060 r 2.08: 6.1040

Table of Statutes lix Supreme Court (Criminal Procedure) Rules 2008 — cont r 3B.08: 3.340 2008 — cont r 3B.09: 3.350 r 2.08(2): 6.460, 6.1070 r 3B.10: 3.350 r 2.08(3): 6.460, 6.1070 r 3B.11: 3.60 r 2.09.1: 6.460, 6.1070 r 3B.12: 3.320 r 2.09.2: 6.450, 6.1060 r 3B.13: 3.320 r 2.13: 6.1000 r 3C.02: 3.130 r 2.15(1): 6.1250 r 3C.04: 3.190 r 2.15(1)(b): 6.1250 r 3C.05: 3.180 r 2.15(1)(c): 6.1190, 6.1250 r 3C.06: 3.180 r 2.15(3): 6.1250 O 2: 6.350 r 2.15(4): 6.1250 O 2, Pt 4: 5.520 r 2.16: 6.1420 O 3: 5.300, 5.520 r 2.17: 6.1420 O 3A: 7.10 r 2.18: 6.260 O 3A.03(1): 7.90 r 2.19: 6.290 O 3B: 3.220 r 2.19(2): 6.290 O 4: 3.220 rr 2.20: 6.260, 6.290 r 2.21: 6.260, 6.290 O 56: 3.580 r 2.22: 4.320, 6.420 Pt 5: 5.520 r 2.23(1): 6.420 Pt 6: 5.520 r 2.23(3): 6.430 Pt 10: 5.520 r 2.23(3)(b): 6.420 Form 3B: 4.530 r 2.24(1): 6.430 Form 5G: 7.250, 7.400, 7.410, 7.500, 7.530 r 2.26(1): 6.1730 Form 6-2: 6.430 r 2.26(2): 6.1730 Form 6-2A: 6.370 r 2.26(3): 6.1740 Form 6-2B: 6.980 r 2.36: 6.470 Form 6-2C: 4.270, 4.310, 4.560 r 2.36(2): 6.470 Form 6-2E: 6.1420 r 2.36(3): 6.470 Form 6-2F: 6.260 r 2.38: 6.560 Form 6-2G: 6.290 r 2.40: 5.460, 6.590 Form 6-2H: 4.320, 6.420 rr 2.40: 6.590 Form 6-2I: 6.430 r 2.41: 6.590, 6.600 Form 6-2J: 6.430 r 2.42(1): 6.490 Form 6-2K: 6.460, 6.1070 r 2.42(4): 6.490 Form 6-2N: 5.460, 5.520, 6.590 r 2.54: 4.310, 4.560 Form 6-2R: 4.310 r 3.03(1): 5.300 Form 6-2DA: 6.450, 6.1060 r 3.03(2): 5.300 Form 6-2DB: 6.450, 6.1060 r 3.04(1): 5.210 Form 6-2DC: 6.460, 6.1070 r 3.04(2): 5.210 Form 6-3A: 5.210, 5.240, 5.300, 5.360, r 3.05: 5.520 5.500, 5.520 r 3.05(1): 5.320 Form 6-3B: 5.210, 5.240, 5.510, 5.520 r 3.06: 5.380 Form 6-3BA: 3.220 r 3.06(1): 5.140, 5.270, 5.430 Form 6-3CA: 3.130 r 3.06.1: 5.300 Form 6-3CC: 3.190 r 3.06(2): 5.270 Form 6-3CD: 3.180 r 3A.03(2)(a): 7.200 Form 6-3CE: 3.180 r 3A.04: 7.70, 7.100 Form 6-K: 6.460, 6.1070 r 3A.05: 7.70, 7.110 Form 8A: 7.500 r 3A.05(1): 7.70 Form 46A: 7.110 r 3A.06: 7.70 Form 48A: 7.650 r 3B.02: 3.220 Form 48B: 7.650 r 3B.03: 3.220 r 3B.04: 3.220 Supreme Court (General Civil Procedure) r 3B.05: 3.320 Rules 2005: 0.30 r 3B.06: 3.480 r 3B.07: 3.540 r 77.03: 4.480

lx

Table of Statutes

Supreme Court (General Civil Procedure) Rules 2015: 0.30, 1.100, 1.760, 1.880 s (5.1): 7.420 s (8): 7.390 r 3.04: 7.360 r 6.02: 7.440 r 6.03: 7.440 r 6.04: 7.440 r 6.09: 7.440 r 6.10: 7.440 r 8.05(1): 7.500 r 25.03: 7.660 r 25.04(2): 7.660 r 48.03: 7.650 r 48.04(2): 7.650 r 56.01(2): 7.250, 7.270, 7.410 r 56.01(3): 7.270 r 56.01(5): 7.420 r 56.01(7): 7.390 r 56.01(9): 7.390 r 56.02(1): 7.350 r 56.02(2): 7.250 r 56.02(3): 7.380 r 58.06: 7.10 r 58.14: 7.10 r 63.13: 7.10 r 63.15: 7.660 r 64.03: 7.790 r 64.04: 7.760 r 64.06(5): 7.780 r 64.07: 7.780 r 64.08: 7.780 r 64.11(b): 7.800 r 64.14: 7.890 r 64.15: 7.770 r 64.24: 7.790 rr 64.30 to 64.32: 7.810 r 77.02(3)(c): 7.240, 7.530 r 77.06: 7.610 r 77.06.2: 7.610 r 77.06.3: 7.610 Ch 1, O 27: 3.270, 4.190 O 3: 7.360 O 3A.01: 7.10 O 6: 7.440 O 56: 0.30, 1.100, 1.950, 3.580, 4.490, 6.1510, 7.10, 7.30, 7.250, 7.300, 7.370, 7.390, 7.410, 7.520, 7.690 O 56.01: 1.100, 7.10 O 57: 1.100 O 57.03: 1.100 O 57.04: 1.100 O 57.04 to 07: 1.100 O 57.05: 1.100 O 57.06: 1.100 O 57.07: 1.100 O 57.08: 1.100

O 58: 0.30 O 63: 7.10 O 64: 0.30, 7.730 O 77: 7.530 Form 5G: 7.950 Form 48A: 7.960, 7.970 Form 48B: 7.960, 7.970 Form 64A: 7.790, 7.810 Form 64B: 7.770 Form 64C: 7.780 Form 64D: 7.770 Form 64E: 7.770, 7.800 Form 64G: 7.790, 7.810

Surveillance Devices Act 1999: 2.260 s 6: 2.260 s 6(1): 2.260

Vexatious Proceedings Act 2014: 1.970 Victims of Crime Charter Act 2006 s 9(f): 1.900

Western Australia Criminal Appeals Act 2004 s s s s s

23: 6.1050 24(2)(e)(ii): 8.480 24(2)(da): 9.70 27(2): 6.440 30: 0.30

Imperial and United Kingdom Conventicle Act 1671: 1.850 Criminal Appeal Act 1907: 1.40, 1.90, 1.110, 1.120, 1.210, 1.360, 1.400 s s s s s s s s s s s s s s s s s s

1(1): 1.120 1(2): 1.120 1(3): 1.120 1(6): 1.120 1(7): 1.120 2: 1.130 3: 1.140 3(b): 1.140 4(1): 1.150 4(2): 1.160 4(3): 1.160, 1.400 5(1): 1.170 5(2): 1.180 5(4): 1.190 6(1): 1.200 6(2): 1.200 7: 1.220, 1.460 7(1): 1.220

Table of Statutes lxi Criminal Appeal Act 1907 — cont s 7(2): 1.200 s 8: 1.230 s 9: 1.160, 1.240 s 10: 1.250 s 11: 1.260 s 12: 1.270 s 13(1): 1.280 s 13(2): 1.280 s 14(1): 1.290 s 14(2): 1.290 s 14(3): 1.290 s 15(1): 1.300 s 15(2): 1.300 s 15(4): 1.300 s 15(5): 1.300 s 16(1): 1.300 s 17: 1.140, 1.310 s 18: 1.320 s 19: 1.330 s 20: 1.110, 1.340 s 20(4): 1.350

Criminal Appeal Act 1964: 1.160 Criminal Appeal Rules 1908 s 6: 1.140 r 22: 1.220 r 26: 1.350 r 26(a): 1.140 r 34: 1.160

r 35: 1.160 r 45: 1.220

Crown Cases Act 1848: 1.110, 1.140, 1.350 Habeas Corpus Act 1640: 1.90 Habeas Corpus Act 1679: 1.90 Habeas Corpus Act 1816: 1.90 Human Rights Act 1988 s 3: 2.10 Sch 1, Art 6(1): 2.250

Judicature Act 1873 s 57: 1.110

Prosecution of Offences Act 1879: 1.270 Supreme Court of Judicature Act 1873 s 47: 1.350

Trial of Lunatics Act 1883: 1.190

Treaties and Conventions International Covenant on Civil and Political Rights: 2.10, 2.60, 2.320 Art 14(5): 0.20, 1.20, 2.170

Introduction

WHAT IS THIS BOOK ABOUT? [0.10] In criminal proceedings, one or both parties involved may be dissatisfied with a range of outcomes of those proceedings. These outcomes may range from the judicial decision, judgment or order, to the jury verdict or sentence post-trial and the dissatisfaction often results in a challenge in the form of an appeal or review. A party might also seek to challenge a particular legislative provision as being invalid or challenge the powers of a particular body. More rarely, a trial judge may seek the opinion of an appellate court regarding a difficult and important question of law that has arisen in the course of criminal proceedings. An effective system of appeals needs to accommodate a wide variety of complaints, challenges and reviews in a fair, efficient and just manner.1 At the same time, it is critical that the criminal proceeding reaches finality for the benefit of both the parties and the public. Finality is recognised in the general principle that multiple appeals to the same appellate court are not permitted. Where a person has exhausted their statutory appeal rights, and fresh or new evidence subsequently emerges (casting doubt on their original conviction), the question of “post-appeal” review rights becomes important, especially in balancing those rights with the need for finality. This book describes and explains contemporary law and procedure governing appeals and other forms of review in respect to criminal proceedings in all courts in Victoria. It also includes appeals to the Federal Court and High Court of Australia. The terms of the relevant statute create the right of appeal2 and it is therefore critical for practitioners to carefully scrutinise the relevant statutory terms in order to decide the likelihood of an appeal succeeding and assist in the framing of written grounds of appeal. If the terms of the 1 One key aspect of efficiency is that an application or an appeal should be heard and determined by the appellate court within a reasonable period of time from the date of the conviction, sentence, order or decision being appealed, particularly where the appellant is in custody or, in the case of an interlocutory appeal, where the trial has commenced. 2 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] 135 CLR 616 at 621–622; Applicants A1 and A2 v Brouwer (2007) 16 VR 612; [2007] VSCA 139 at [6]–[8] and [12].

2

Criminal Appeals and Reviews in Victoria

[0.10]

relevant statute (regarding an application for leave to appeal or the appeal itself) cannot be satisfied, the appeal will fail. The statutory rights, procedures, threshold arguments, dispositional powers and jurisprudence that have developed concerning how each court of appeal approaches the relevant appeal or review, are set out in the text of this book. The book is a step-by-step guide for the busy practitioner who is required to know what type of appeal might be available and how to commence or respond to an appeal. It is also a helpful guide for advocates who are briefed to appear in an appeal or review. It also provides guidance on the drafting of relevant documents such as applications for leave to appeal, grounds of appeal and affidavits in support of judicial review. Practical guidance is provided in regard to appellate advocacy, addressing what is expected by the court and how best to present submissions to the court. Criminal appeals have developed into a critical component of the contemporary criminal justice system, reflecting a greater emphasis on human rights and procedural fairness.3 Over the last two decades in Victoria and other jurisdictions, there has been a significant shift within the law in regard to criminal appeals. Whereas once an appeal against sentence or conviction was seen by many practitioners as a peripheral matter, the right to appeal is now regarded as a fundamental human right,4 and from 2011 far-reaching reforms have been introduced by the Victorian Court of Appeal to the procedures and practices relating to criminal appeals.5 Apart from setting out the law, a number of broader aspects of criminal appeals are also considered in this book. These include the purposes of appeals, how appeal processes can relate to the administration of criminal justice more generally, and the expansion of prosecution appeal rights. The essential features of a fair and effective criminal appeals system are also explored.

3 In Australia a number of books on criminal appeals have recently been published: see D Mildren, The Appellate Jurisdiction of the Courts in Australia (Federation Press, Sydney, 2015); B Sangha and R N Moles, Miscarriages of Justice: Criminal Appeals and the Rule of Law in Australia (LexisNexis, Sydney, 2015). A number of jurisdictions have recently overhauled their system of criminal appeals. For example, in 2013 New Zealand restructured its criminal appeal system in order to create a simpler, more effective and fairer system. The New South Wales Law Reform Commission has recently published a major report on criminal appeals recommending sweeping reforms to criminal appeals in NSW: see New South Wales Law Reform Commission, Criminal Appeals, Report No 140 (Sydney, 2014). See also Alberta Law Reform Institute, Criminal Appeal Procedures: Queens Bench and Court of Appeal, Final Report No 101 (2012). 4 Recognised in the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(4). 5 See Supreme Court of Victoria, Practice Direction No 2 of 2011. The reforms in this Practice Direction are largely the result of the “Ashley-Venne” reforms, discussed further in Chapter 1 at [1.730]–[1.770].

[0.20]

Introduction

3

TYPES OF APPEAL AND REVIEW [0.20] A recurrent theme in this book is the meaning of the word “appeal” in the criminal context. As the High Court and other appellate courts have noted, the term “appeal” can have various meanings, and although a number of cases have attempted a taxonomy, none are likely to be exhaustive.6 The common law has never recognised the right of a person convicted at trial (before a judge and jury, or judge alone) to appeal either their conviction or sentence, and the common law has also never recognised the right of the Crown to appeal an acquittal or a sentence. All appeals are inventions of statute and, accordingly, legislatures have created a range of different types of appeal and review in criminal matters, depending upon the nature of the decision being appealed. Occasionally, it can be difficult to discern what type of appeal is required by the relevant statutory provision.7 A system of criminal appeals requires the legislature to first endow a court with appellate jurisdiction and disposition powers, then to grant appeal rights to one or more of the parties, and subsequently to design the rules of procedure. The courts have created their own sets of statutory rules, Practice Directions and Practice Notes governing criminal appeals. In the most general sense, an appeal is a form of review to determine if some type of error has been made and, if so, to correct that error.8 There are, of course, many types of errors that can be made in criminal proceedings and many types of remedies. Appeals, however, can involve more than simply correcting error. For instance, statutory appeals should be distinguished, on the one hand, from judicial review, on the other. Statutory appeals give a party the right to appeal (or to seek leave to appeal in many cases) a specific decision, such as the decision of a 6 See, eg, Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [57]; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [20]; Western Australia v Rayney (2013) 46 WAR 1; [2013] WASCA 219 at [402]; Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 207; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 [11]. The Judiciary Act 1903 (Cth) s 3 defines an appeal as including “an application for a new trial and any proceedings to review or call into question the proceedings, decision or jurisdiction of any Court or Judge”. For a discussion of types of appeal and functions of appeal in sentencing matters, see A Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Lawbook Co., Sydney, 2014) at [17.10]–[17.25]. 7 See, eg, Applicants A1 and A2 v Brouwer (2007) 16 VR 612; [2007] VSCA 139 where the Court of Appeal noted that it was not clear what type of appeal the Director of Police Integrity was required to engage in. The court stated that such interpretive difficulties could be avoided due to the fact that “[t]he recognised categories of appeal, and their distinguishing characteristics should be specified and defined in the Interpretation of Legislation Act 1984”: at [12]. 8 Article 14(5) of the International Covenant on Civil and Political Rights, the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(4) and the Human Rights Act 2004 (ACT) all use the term “review” as distinct from “appeal”. “Review” is a much broader term than “appeal” and allows for the full range of appeals and reviews possible within a jurisdiction.

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Criminal Appeals and Reviews in Victoria

[0.20]

magistrate to convict or the decision of a jury to convict, or the sentence imposed by a judicial officer. The relevant statute sets out the grounds for the appeal, the procedure, and the disposition powers of the appeal court. There are no limits to the type of appeal a legislature can create and for this reason, there are many types of statutory appeal.9 By comparison, judicial review refers to a higher court determining the legality of the entire proceedings. For example, the applicant may complain that he or she was denied procedural fairness in the way the proceedings were conducted, or may complain that the judge or magistrate was biased but refused to stand down. In these circumstances, the aggrieved party cannot rely on the ordinary statutory appeal rights. The applicant seeks from the court (exercising its original, rather than appellate, jurisdiction) an order in the nature of one of the prerogative writs such as prohibition, mandamus or certiorari. Judicial review is thus a different type of process from an appeal in that the appellate court is essentially exercising a supervisory role over the inferior courts, ensuring the inferior court is acting within jurisdiction and acting judicially. There are many situations where the only available remedy for an aggrieved party is judicial review rather than a specific statutory appeal right. For these reasons judicial review is included in this book as an important aspect of the overall appeals system in Victoria. Chapter 7 is devoted to judicial review and appealing a question of law.10 Another type of appeal, and perhaps the oldest procedure, is the “Case Stated” procedure whereby a trial judge can reserve a question of law that has arisen and “state a case” for the opinion of an appellate court. The Case Stated procedure is available in respect to State and federal criminal proceedings.11 As discussed more fully in Chapter 1 at [1.790]–[1.860], there are several types of statutory appeal. For the purposes of this book, three basic types of statutory appeal are discussed. First, a “strict appeal” (stricto sensu) means the appeal court is only concerned with whether or not legal error in the judgment from the court below can be established on the material that was before the court below. The appellate court examines the transcript and submissions of counsel and new or fresh evidence is not permitted. One reason for a strict appeal is because the appeal typically concerns the way in which the judge (in the court being appealed) exercised his or her judicial discretion. Appellate courts are very reluctant to interfere in the exercise of judicial 9 Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [94] per Callinan J. 10 Applications for judicial review and appeals on a question of law from the Children’s Court or the Magistrates’ Court are dealt with in the “Judicial Reviews and Appeals List” of the Trial Division of the Supreme Court of Victoria, as a specialist appeals division of the Supreme Court. 11 The High Court has stated that the Case Stated procedure is an “appeal” for the purposes of the Judiciary Act 1903 (Cth) s 68(2): see R v Gee (2003) 212 CLR 230; [2003] HCA 12 at [13].

[0.20]

Introduction

5

discretion unless clear error can be established.12 An example of a strict appeal is an appeal to the Victorian Court of Appeal against conviction or sentence (albeit the court has the power to admit new evidence in exceptional circumstances). An appeal to the High Court from a decision of the Victorian Court of Appeal is also a strict appeal. A second type of appeal is a rehearing. There can be several forms of a rehearing, which means the appellate court rehears the case on the basis of the material that was before the original court and new evidence is not permitted. However, some types of rehearing do permit additional evidence to be admitted if the appellate court has statutory authority to do so. An example of a rehearing is an appeal from the Magistrates’ Court to the Supreme Court on a question of law. The third type of statutory appeal is a hearing de novo, which means the appellate court hears the whole case again (“afresh”) without reference to the transcript of the court below, and without regard to whether any error occurred in the hearing below. The prosecution is required to prove the case again and the appellant is not bound by his or her original plea. A hearing de novo could be described as the most generous type of appeal for the appellant because he or she is not required to demonstrate any error. An example of a hearing de novo is an appeal against conviction or sentence from the Magistrates’ Court to the County Court. Also within the general sense of the word “appeal”, it can also mean any type of application or “referral” of a matter to an appellate court seeking some form of assistance.13 In this broad sense, the party seeking the assistance of the appellate court is the “applicant” or the “referrer”. Examples of this broader meaning of appeal include an application for leave to appeal (a conviction, a sentence, or an interlocutory decision), and the referral of a matter by the Director of Public Prosecutions to the Court of Appeal. A special type of referral is the power of the Attorney-General to refer either a point of law or the whole case to the Court of Appeal on a petition for mercy after the petitioner has exhausted all the conventional statutory appeals.14 Pursuant to s 33(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), a question of law relating to the application of the Charter or an interpretation of a statutory provision in accordance with the Charter, can be referred to the Supreme Court. 12 House v The King (1936) 55 CLR 499; [1936] HCA 40. The appellate court is also aware of the advantages enjoyed by the jury in seeing and hearing the witnesses first-hand. 13 The Criminal Procedure Act 2009 (Vic) s 3 defines “appeal” to include an application for leave to appeal. Strictly speaking, an application for leave to appeal is a separate process from an appellate court hearing and determining an appeal. The application is a preliminary step and involves different considerations from the determination of the appeal itself. However, in practice, in determining an application for leave to appeal, the appellate court must, to a significant degree, engage in an assessment of the merits of the grounds of appeal. 14 Criminal Procedure Act 2009 (Vic) s 327.

6

Criminal Appeals and Reviews in Victoria

[0.20]

This book covers all these different types of appeals, reviews and applications. It will be seen that whilst each type of appeal and application has some common features, they all serve different purposes and provide for different types of remedies. In this context, the Victorian Court of Appeal recently handed down its first “guideline judgment”.15 The purpose of a guideline judgment in such an appeal is different from judgments in other types of appeals. Chapter 1 explains in more detail the nature of each of these types of appeal, review and application. A surprising range of decisions can be appealed. The most obvious and the most common are appeals against a finding of guilt (or conviction) and appeals against a sentence imposed. Other decisions that can be appealed include a decision relating to the bail of an accused person, a decision relating to the fitness of an accused to stand trial, and virtually any other “decision” made by a judicial officer, either pre-trial or during a trial. An interlocutory appeal, for example, can be brought against an “interlocutory decision”, which is very broadly defined in the Criminal Procedure Act 2009 (Vic).16 Each type of appeal has advantages and limitations. This book explains the law in respect to all these types of decisions. The distinctive role of the High Court as a court of review is also examined in Chapter 9. Whilst appeals to the High Court share many similarities with conventional appeals to the court of appeal of a State or Territory, the High Court is not simply another court of appeal. In most criminal appeals, the High Court is asked to determine if the court of appeal of a State or Territory has made a substantial mistake, and the applicant must first obtain “special leave” to appeal from the High Court before the High Court can hear the actual appeal. To obtain special leave, the applicant must satisfy s 35A of the Judiciary Act 1903 (Cth), which provides (in effect) that the matter being appealed against must involve a question of law that is: (a) of public importance or requires the High Court to resolve a difference of opinion between the courts; and (b) in the interests of the administration of justice in the particular case which requires the High Court to consider the judgment being appealed. As a consequence of the stringency for obtaining special leave to appeal, the High Court will only hear those cases which involve an important question of law which affects the administration of justice nationally or which involves a substantial miscarriage of justice. An unsuccessful appellant at the State level cannot expect to have his or her case automatically heard by the High Court. 15 Boulton v The Queen [2014] VSCA 342. As discussed in Chapter 6 at [6.1310]–[6.1380], this case involved three offender appeals against sentence. As the respondent, the Victorian DPP had standing to apply for a guideline judgment under the Sentencing Act 1991 (Vic) s 6AB(1). 16 The Criminal Procedure Act 2009 (Vic) s 3 defines an interlocutory decision as a decision made by a judge in a proceeding referred to in s 295(1), whether the decision was made before or during a trial, including a decision to grant or not to grant a permanent stay of proceedings.

[0.30]

Introduction

7

In addition to determining appeals, the High Court also exercises a supervisory function over inferior courts through the various writs available upon judicial review. These are also examined in this book. The availability of appeals and reviews for persons convicted and sentenced for federal offences can raise difficult jurisdictional issues for State courts dealing with such cases. The way in which the law deals with these difficulties is also examined in this book.

WHY IS THIS BOOK NEEDED? [0.30] This book is needed for several reasons. First, compared to all other jurisdictions in Australia, Victoria has a distinctive and, in some ways, unique, set of laws regulating criminal appeals. The Criminal Procedure Act 2009 (Vic) sets out a comprehensive and coherent set of laws regarding appeals from decisions in the Magistrates’ Court, the County Court of Victoria and the Supreme Court of Victoria. This includes appeals against conviction, appeals against sentence (defence and prosecution), cases stated and interlocutory appeals. One of the unique features of the Criminal Procedure Act 2009 (Vic) is the consistency in the rules which apply regardless of the jurisdiction covered.17 The same terminology is used wherever possible. Consistency is a key feature of the rule of law. The Criminal Procedure Act 2009 (Vic) was introduced in 2009, and since then a considerable body of case law has developed concerning criminal appeals. A specialist text is therefore necessary to set out in a clear manner the relevant rules and procedures for each court jurisdiction. In regard to appeals against conviction, s 276 of the Criminal Procedure Act 2009 (Vic) has remodelled the traditional “common form” provision of appeal which, in effect, still applies in all other jurisdictions in Australia. This remodelling makes Victoria unique.18 The common form provision of appeal refers to three distinct grounds of an appeal against conviction plus what is called “the proviso”.19 The proviso enables a court of appeal 17 By comparison, many other jurisdictions in Australia have a fragmented statutory system of criminal appeals which makes the laws difficult to understand and has resulted in inconsistencies. Victoria is also unique in being the only jurisdiction in Australia to permit a de novo appeal as of right from the Magistrates’ Court to the County Court. 18 The New South Wales Law Reform Commission has recommended reforming the common form provisions: see New South Wales Law Reform Commission, Criminal Appeals, Report No 104 (2014) at [8.1]. 19 Although there are minor differences in the terminology in the legislation in each jurisdiction in Australia, the three grounds of appeal are generally expressed to be: (a) that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; (b) that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law; or (c) that on any ground there was a miscarriage of justice. These are the only grounds recognised by the relevant Court of Appeal. However, in all jurisdictions, except Victoria, there is a proviso in the relevant legislation which states (or is to the effect) that the Court of Appeal may, notwithstanding

8

Criminal Appeals and Reviews in Victoria

[0.30]

to dismiss an otherwise meritorious appeal if the court thinks that no “substantial miscarriage of justice has actually occurred”. The Criminal Procedure Act 2009 (Vic) s 276 has jettisoned the proviso in favour of a simpler formulation of the grounds of an appeal against conviction. Chapter 6 explains how appellate courts have interpreted the new Victorian provisions. (In 2010 the relevant appeal provisions of the Criminal Procedure Act 2009 (Vic) were used as a benchmark in an important Discussion Paper produced by a working group of the Standing Committee of AttorneysGeneral (SCAGS) in an attempt to develop uniform appeal laws throughout Australia.20 This is not say that the new Victorian provisions are free from any interpretive issues, as discussed in subsequent chapters of this book, but it does indicate the influence of the Victorian provisions at the national level.) Central to the operation of the Victorian system of appeals (and that in other Australian jurisdictions) against conviction in the higher courts is the ground of appeal that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence”. This book explains how the appellate courts have interpreted this phrase, including how the appeal court itself should go about determining this issue. Victoria is also distinct (but not unique) in recognising a statutory right to appeal interlocutory decisions made by a trial judge in the higher courts.21 Interlocutory appeals attempt to avoid unnecessary fragmentation of criminal proceedings, on the one hand, but also attempt to avoid unnecessary trials or post-trial appeals, on the other, by the early that it is of the opinion that one of the points raised by the appellant might be decided in favour of the appellant, dismiss the appeal if it considers that “no substantial miscarriage of justice” has actually occurred. In other words, the appeal will be dismissed, even though the appellant has established some type of miscarriage of justice has occurred, if no “substantial” miscarriage of justice did in fact occur. The meaning of the term “substantial miscarriage of justice” is not immediately apparent and is open to a number of interpretations. The generality of the proviso also raises the question of how the Court of Appeal should go about deciding this issue. Not surprisingly, this issue has generated a significant amount of case law and academic discussion. It was because of these uncertainties and confusion that the Victorian Criminal Procedure Act 2009 (Vic) s 276(1) abandoned the traditional formulations of the common form of appeal grounds and the proviso. For the specific wording of the common form grounds of appeal and the proviso, see Supreme Court Act 1933 (ACT) s 37O(2) and (3); Criminal Appeal Act 1917 (NSW) s 6; Criminal Code 1899 (Qld) s 668E; Criminal Code (NT) s 411; Criminal Appeals Act 2004 (WA) s 30; Criminal Law Consolidation Act 1935 (SA) s 353(1); and Criminal Code 1924 (Tas) Sch 1, s 402(1). 20 Harmonisation of Criminal Appeals Working Group of the Standing Committee of Attorneys-General, Harmonisation of Criminal Appeals Legislation, Discussion Paper (2010). It appears that the Standing Committee of Attorneys-General (SCAGS) has decided not to proceed with this project: see Standing Council on Law and Justice (2011), Communique Summary of Out of Session Decisions. 21 Victoria is not unique in recognising interlocutory appeals in criminal matters, but the Victorian model has simplified the procedures available in other jurisdictions, particularly in relation to the definition of an interlocutory decision.

[0.30]

Introduction

9

identification and resolution of legal issues. Chapter 5 of this book examines how the Criminal Procedure Act 2009 (Vic) and the Victorian Court of Appeal have attempted to balance these competing considerations. Another distinctive (but not unique) feature of criminal appeals in Victoria is the statutory prohibition on the Court of Appeal from taking into account any element of double jeopardy when hearing a Crown appeal against sentence. Victoria is only the second jurisdiction in Australia to enact a Charter of Human Rights and Responsibilities Act 2006 (Vic).22 The Charter not only recognises the right to appeal as a central human right (s 25(4)), but provisions of the Charter have been used in a number of cases to both ground an appeal and to assist in appellate decision-making. The relevance of the Charter to criminal appeals is dealt with more closely in Chapter 2 of this book. A second reason this book is needed is to bring practitioners up to date with recent legislative reforms and reforms to appeal procedures in the higher courts. For example, in 2011 the Supreme Court issued Practice Direction No 2 of 2011. This direction sets out the procedure for appeals against conviction and sentence to the Court of Appeal.23 It also makes it clear that the Victorian Court of Appeal expects trial counsel to be more involved in the appeal process than previously. There is now an expectation that trial counsel will advise on possible appeals, draw grounds of appeal, and appear before the Court of Appeal. This is a significant shift in approach and is likely to create significant challenges for trial counsel with minimal appellate experience. It is to be hoped this book will provide assistance to the uninitiated in grappling with such appellate processes and procedures. In 2014, the Children’s Court of Victoria was given jurisdiction to determine the issue of fitness to stand trial and to make a supervision order where the accused was found to have a mental impairment (discussed in Chapter 3 of this book). As a result, a number of related appeal rights have been created. Practitioners in this jurisdiction clearly need to be aware of these new rights. The Jury Directions Act 2015 (Vic) has consolidated and clarified the role of the trial judge and trial counsel in the formulation of appropriate directions to the jury in criminal trials (discussed in Chapter 6 of this book). These legislative reforms are designed to reduce the number of appeals arising from jury directions. No doubt, the new provisions may also provide grounds for appeals against conviction. 22 The Australian Capital Territory has a Human Rights Act 2004 (ACT). 23 For background to this Practice Direction and a very useful account of the new reforms, see P Tate, “Judicial Independence as Institutional Autonomy” (Paper, Annual Conference, Supreme Court of Western Australia, 29–30 August 2014).

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Criminal Appeals and Reviews in Victoria

[0.40]

In 2009, the appellate jurisdiction of the Federal Court was significantly reformed by the introduction of a new Div 2A, headed “Appellate and related jurisdiction (criminal proceedings)”. Although the criminal appellate jurisdiction of the Federal Court is limited in terms of the number of cases dealt with each year, the Federal Court is nevertheless part of the overall legal framework in Victoria, and hence is covered in Chapter 8 of this book. The procedural rules governing appeals are also in a state of change as magistrates and judges respond to changes in the law and increasing pressure on court resources. These procedural rules can be mainly found in the Practice Notes and Statutory Rules of the various courts.24 This book covers all the recent reforms that are now incorporated into the newly proclaimed Supreme Court (General Civil Procedure) Rules 2015 (Vic) which became effective on 23 November 2015.25 These rules update the former Supreme Court (General Civil Procedure) Rules 2005 (Vic), and apply to judicial reviews (O 56), appeals on a question of law (O 58), and appeals to the Court of Appeal (O 64). The Victorian Judicial College also publishes various e-manuals and Bench Books relating to trial practices, evidence, sentencing, and human rights, and these are referred to in the book where relevant. Clearly, it is important for practitioners to keep up to date with all these rules and practices. In short, this book seeks to provide a comprehensive account of the distinctive set of laws governing criminal appeals and reviews in Victoria. In addition to the substantive and procedural law, this book also discusses appellate advocacy. Advocacy can in general be described as the art of persuasion. The importance of being able to persuade an appellate court of the merits of one’s case can hardly be over-estimated. Effective advocacy is required, first, in the drafting of appeal grounds and written submissions in support, and second, in orally presenting arguments and submissions to an appellate court. Chapter 10 of this book discusses these aspects of effective advocacy to further assist practitioners.

COMPETING CONSIDERATIONS [0.40] Criminal appeals, like many other aspects of criminal justice administration, attempt to provide a balance between competing considerations. These competing considerations create what could be described as a continual “tension” within legislative provisions and 24 In the higher courts the judges are responsible for rules of court: see Supreme Court Act 1986 (Vic) s 25(1) and the County Court Act 1958 (Vic) s 78. In the Magistrates’ Court the magistrates are responsible for rules of court: see Magistrates Court of Victoria Act 1989 (Vic) s 16. 25 The Supreme Court (Chapter 1 Judicial Review Amendment) Rules 2016 (Vic) (SR No 51/2016), effective 1 July 2016, make further amendments to the originating motion procedure, discussed in Chapter 7 of this book.

[0.40]

Introduction

11

within judgments of appeal courts involved in the interpretation of legislation. This tension constitutes a recurrent theme throughout this book. For example, the (private) interests of the convicted person are clearly central to the existence and operation of appeals. The convicted person has an interest in ensuring that her or his trial was fair and that an alleged error at the trial will be identified and corrected. These are individual or personal interests. However, that primary interest is not unqualified or unlimited. The community, the State, the courts and the victim also have interests in an appeal, but those (public) interests may not be consistent with those of the convicted person. In this context, questions of court efficiencies, costs and criteria for permitting and allowing an appeal can arise. For example, should all persons convicted of any offence have an automatic right to appeal their conviction and sentence, or should the relevant court of appeal have to grant leave to appeal in some cases? If a convicted person can appeal an allegedly wrong conviction, why should not the prosecution be permitted to appeal an allegedly wrongful acquittal? Perhaps this last question is not a simple matter of a converse right of the prosecution if prosecution appeals involve quite different issues to the right of an offender to appeal. A related tension here is between the need for finality in criminal proceedings, on the one hand, and the need for effective access to the courts for an aggrieved party, on the other. The law must achieve a reasonable balance between these competing considerations. Perhaps the most important recognition of finality is that, in general, a person can only appeal once to the same court on the same grounds. For example, if an offender unsuccessfully appealed their conviction to the Victorian Court of Appeal, and new evidence of innocence subsequently emerged, they could not directly appeal again to the Court of Appeal.26 By comparison, such a second appeal is recognised in South Australia and Tasmania.27 A distinct set of laws applies to appeals regarding mental impairment as a defence and unfitness to stand trial. These laws are contained in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). These laws attempt to strike a balance between the need to protect the community from mentally impaired persons and the rights and interests of those mentally impaired persons. 26 The only option would be to apply for a petition of mercy, as discussed in Chapter 6 at [6.1710]. 27 Under the Criminal Law Consolidation Act 1935 (SA) s 353A, the Full Court of the Supreme Court can hear a second or subsequent appeal against conviction if the court is satisfied there is fresh and compelling evidence (of innocence). Similar provisions apply in Tasmania: see Criminal Code 1924 (Tas) Sch s 402A. The requirement of fresh and compelling evidence also applies in the converse situation in Victoria where the DPP can apply to the Court of Appeal for the retrial of a person acquitted: see Chapter 6 at [6.1520]–[6.1700].

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Criminal Appeals and Reviews in Victoria

[0.50]

Another tension exists between the demands of efficiency and limited court resources, on the one hand, and the traditional rights of an applicant, on the other. In Victoria (and in other jurisdictions in Australia) the Court of Appeal controls the increasing numbers of applications coming before it by, for example, permitting one or two judges to determine the application for leave to appeal and determine the appeal itself simply “on the papers” without an oral hearing. This is in contrast to the traditional practice of allowing an applicant to put their case on appeal to a Bench of three justices in a full and comprehensive manner, particularly by oral submissions.28 The way the law regulates these competing considerations is also examined in Chapter 6 of this book.

WHO IS THIS BOOK FOR? [0.50] This book is designed principally to meet the needs of legal practitioners and advocates who require ready access to key rules and procedures (as well as case law) in order to: • • • •

decide whether or not to commence a particular type of appeal; draft grounds of appeal; commence an appeal using the relevant form; understand the relevant statutory test that will determine the outcome of the appeal and how the appellate court goes about applying the test; and • prepare submissions to the court (from both ends of the Bar table). Legal officers within State and federal regulatory agencies involved in criminal prosecutions will also find the book useful. These include practitioners in the summary jurisdiction as well as the higher courts. The book will also be of use to law students studying criminal procedure and criminal law, and to governmental policy-makers working in the area of criminal law and criminal practice.

STRUCTURE OF THE BOOK [0.60] Chapter 1 explains the importance of appeals and the justification for having an appellate process. A detailed historical analysis is then provided to explain the origins and key features of the contemporary criminal appeal system in Victoria. The chapter then provides a taxonomy of appeals, the Victorian court structure, appeals in federal matters, and the petition of mercy. Chapter 2 discusses the importance of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) to criminal appeals. The chapter 28 In Victoria these, and related reforms, have been remarkably successful in reducing the backlog of cases waiting to be heard and determined, and in reducing delay between the date of conviction and sentence, and the determination of the appeal or the application for leave to appeal. These reforms have led to very significant advantages for the judges of the Court of Appeal, the parties and legal practitioners.

[0.60]

Introduction

13

explains the general features of the Charter and examines how the Charter can be engaged in an appeal, the procedures involved, and case studies. Each subsequent chapter is then devoted to a specific court or courts. The courts covered are the Children’s Court of Victoria (Chapter 3), the Magistrates’ Court of Victoria (Chapter 4), the County Court of Victoria and the Supreme Court (Trial Division) of Victoria (Chapters 5 and 6). Chapter 7 provides a detailed account of judicial review and appealing a question of law, including a step-by-step account of commencing proceedings. Chapter 8 examines appeals to the Federal Court of Australia while Chapter 9 examines appeals to the High Court of Australia. Chapter 10 provides guidance on appellate advocacy, including drafting grounds of appeal and presenting submissions in court. In summary, this book sets out the key statutory provisions and key cases for each topic and, wherever appropriate, seeks to explain the rules and procedures in plain language. It does not have to be read “cover to cover”; readers can “dip in” at any chapter to find the information relevant for a particular appeal.

Chapter 1

History and Development of Appeals in Victoria [1.10] Introduction ........................................................................................................................... 15 [1.20] Importance of criminal appeals ......................................................................................... 15 [1.30] Justification for having an appellate process ................................................................... 16 [1.40] History .................................................................................................................................... 18 [1.780] Reform of double jeopardy: 2011 ..................................................................................... 52 [1.790] Categorising criminal appeals .......................................................................................... 52 [1.870] Overview of Victorian court structure ............................................................................ 55 [1.890] Appealing a discretionary decision: House v The King .............................................. 58 [1.900] Role of DPP in criminal appeals ...................................................................................... 59 [1.910] Appeals in federal criminal matters ................................................................................ 60 [1.920] Interventions ........................................................................................................................ 62 [1.930] Some decisions which cannot be appealed .................................................................... 62 [1.960] People prohibited from appealing criminal matters .................................................... 63 [1.990] Petition of mercy ................................................................................................................. 64

Introduction [1.10] This chapter sets out a history of each of the major forms of appeals and reviews in Victoria. The chapter also explains the importance of criminal appeals, how appeal courts approach appeals from discretionary judicial decisions, and the role of the Director of Public Prosecutions in criminal appeals. The chapter also discusses appeals in federal matters, some limitations to criminal appeals, and the petition for mercy procedure.

Importance of criminal appeals [1.20] In Victoria, appeal rights are dealt with principally by statute. The common law has never recognised the right to appeal criminal matters. Being a creature of statute, appeal rights can be expanded, contracted, or varied by Parliament. An example is the adoption by all States in Australia of laws to permit the retrial of an acquitted person (subject to leave of the appellate court), thereby abrogating the long-valued common law of double jeopardy. The judiciary plays a critical role in interpreting any new laws and defining the meaning of key terms in accordance with fundamental doctrines such as the principle of legality. The right to appeal is recognised in Art 14(5) of the International Covenant on Civil and Political Rights 1966, which states: “Everyone convicted of a

16

Criminal Appeals and Reviews in Victoria

[1.30]

crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” This international declaration formed the basis of s 25(4) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (hereafter “the Charter”), which states: “Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.” The Charter does not create any directly enforceable legal rights. However, legislators must have regard to the Charter when introducing any new legislation, the judiciary must have regard to the Charter when interpreting legislation,1 and public authorities must also take the provisions of the Charter into account when making decisions and taking actions. Victorian appellate courts have taken the Charter into account in a number of cases dealing with rights to appeal.2

Justification for having an appellate process [1.30] There are a number of justifications for having an appellate process. For the convicted person, the right to appeal is obviously important in attempting to remedy an alleged serious error and to protect the appellant from further unnecessary punishment. If the appeal is successful, the original miscarriage of justice cannot be undone, but at least its occurrence can be acknowledged.3 For the prosecution, the right of the prosecution to appeal can be seen as a mechanism to ensure that justice is achieved in particular cases, and more broadly as a mechanism to achieve consistency throughout the criminal justice system as a whole, particularly in sentencing. Another reason that appeals have become increasingly important is because the substantive criminal law has become more complex and trial 1 However, if the words in the statute are clear, then they must be given their obvious meaning: Slaveski v Smith (2012) 34 VR 206 at 215. Under s 33 of the Charter, a court can refer a question of law regarding application of the Charter to the Supreme Court. The Judicial College of Victoria has recently published a collection of Charter cases from the inception of the Charter to September 2015: see Judicial College of Victoria, Victorian Human Rights: Charter Case Collection (September 2015). 2 See, eg, DPP v Kaba (2014) 69 MVR 137; [2014] VSC 52 (judicial review); Rich v The Queen (2014) 312 ALR 429; [2014] VSCA 126 (appeal conviction); DPP v Bryer (2014) 241 A Crim R 172; [2014] VSC 224 (question of law); DPP v JPH (No 2) [2014] VSC 177 (declaration); Strangio v Magistrates’ Court of Victoria [2013] VSC 496 (judicial review). See also G Hampel, D Gurvich and S Braun, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) Ch 2. 3 In Australia a person who has suffered a miscarriage of justice in the sense of being convicted and sentenced when, as a matter of law, they should not have been, has no common law or statutory right to receive any form of compensation from the State. At best, the State may offer an ex gratia payment in recognition of the suffering experienced. Examples of persons receiving an ex gratia payment include Andrew Mallard (Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68); Farah Jama (R v Farah Jama [2009] VSCA 7 (December No 764 of 2008) (no longer available): Vincent Report (2010)); and Diane Fingleton (Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34).

[1.30]

1 History and Development of Appeals in Victoria

17

judges have often been required to give juries convoluted directions as to the correct legal principles to apply. There have been concerns as to whether juries properly understand these directions and are able to apply the directions to achieve justifiable verdicts.4 The right to appeal the (guilty) verdict of a jury is a safety precaution against a wrong decision. This is specifically recognised in the Criminal Procedure Act 2009 (Vic) s 286(1) where one of the grounds of appeal against conviction is that the verdict of the jury is “unreasonable” or “cannot be supported” having regard to the evidence.5 In this context, criminal appeals can be seen as a clear check on jury error, or possibly jury perversity. An accused person not only has a right to a trial by judge and jury in indictable matters, but also the right to a “fair” trial or a trial according to law. The right to a fair trial includes the right to have a jury determine the evidence “reasonably” and in accordance with the evidence. Criminal appeals also enhance equality between parties. Equality is a key aspect of the rule of law. The requirement of equality can be found in the principle of parity in sentencing whereby (in general) there should be reasonable parity in the sentences imposed on co-offenders for the same crime.6 Another aspect of the requirement of equality is that a sentence imposed on one offender for a particular offence in particular circumstances, should, in general, be similar to the sentence imposed on another offender for the same offence in similar circumstances.7 Judicial directions to the jury have also been a matter for concern in terms of providing grounds for an appeal against conviction. For these reasons the Jury Directions Act 2015 (Vic) attempts to simplify jury directions and clarify the respective roles of the trial judge and trial counsel in ensuring that only the necessary and appropriate directions are given to the jury, in order to eliminate or at least reduce the possibility of an appeal. The Jury Directions Act 2015 (Vic) replaced the Jury Directions Act 2013 (Vic). On an appeal against conviction where one of the grounds of the appeal is that the trial judge failed to give a particular direction to the jury, or gave an erroneous direction, the appellant at the trial may have failed to object to the lack of, or content of, the direction. On the appeal, the failure of the appellant to raise the concern is, in general, fatal to the 4 See Victorian Law Reform Commission, Jury Directions, Final Report (2009) and the subsequent Jury Directions Act 2015 (Vic). 5 According to His Honour Justice Tilmouth, the most common ground for successful appeals against conviction in Australia for the period 2005–2012 was that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence: S Tilmouth S, “The wrong direction: A case study and anatomy of successful Australian criminal appeals” (2015) 40 Australian Bar Review 18 at 21. 6 Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 and Teng v The Queen (2009) 22 VR 706; [2009] VSCA 148. 7 See, eg, Zakaria v The Queen (1984) 12 A Crim R 386 at 388 and Stalio v The Queen (2012) 223 A Crim R 261; [2012] VSCA 120 at [46].

18

Criminal Appeals and Reviews in Victoria

[1.40]

appeal, unless it can be shown the judge was required to give the direction, even if not requested by counsel.8 Sentencing of State and federal offenders has become very complex, which increases the possibility of error on the part of judges. For that reason it is important that any perceived injustice be reviewed by an appellate court.9

History [1.40] In order to more fully understand the contemporary forms of criminal appeals and reviews, it is useful to briefly examine the historical origins of each of those forms. An historical analysis also shows the major stages or “milestones” in the development of the overall system of appeals and reviews. The historical analysis begins with the use in England of the main prerogative writs (certiorari, mandamus, prohibition and habeas corpus) to review decisions and judgments, particularly of the summary courts. In 1986 important changes to the procedure for the issuing of these ancient writs were made by the Supreme Court Act 1986 and the Rules of the Supreme Court. The history of statutory appeal rights commences with the English Criminal Appeal Act 1907 (UK). This Act is the origin of the main statutory appeal rights and procedures in Victoria in respect to trial upon indictment. The Victorian Crimes Act 1915, which adopted most, but not all, of the reforms in the Criminal Appeal Act 1907 is then discussed. The final stage in the story comprises the 2009 reforms introduced by the Criminal Procedure Act 2009 (Vic), and events post-2009. The prerogative writs [1.50]

According to Pluncknett (writing in 1956):

The history of mandamus, certiorari, prohibition and some other similar writs is still unwritten, but it is clear that they first became important during the Tudor period, and they were a proper development of the jurisdiction of the King’s Bench, for that court had long been close to the Council in the exercise of royal discretion in judicial matters. The writs themselves seem to have been mere administrative orders from superior officials to their subordinates telling them to do something, to give some information, or the like. Clearly, the King’s Bench was making a great contribution to public law when it adapted these 8 Xypolitos v The Queen (2014) 44 VR 42; [2014] VSCA 339 at [33]. The same general principle applies to Crown appeals against sentence: DPP v O’Neill [2015] VSCA 325 at [93]. 9 An example of the complexity of sentencing law is the recently enacted Sentencing Amendment (Baseline Sentences) Act 2014 (Vic). In DPP v Walters (a pseudonym) [2015] VSCA 303 a majority of the five-member bench of the Court of Appeal held that the baseline sentencing provisions in the Sentencing Act 1991 were “incapable of being given any practical operation” (at [9]) and that “the defect in the legislation is incurable”: at [8].

[1.60]

1 History and Development of Appeals in Victoria

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writs to legal purposes, and assumed the task of directing them as occasion required, of directing them to various departments of central and local government.10

Two points may be noted from this quote. First is the connection between the sovereign and the issuing of the prerogative writs. Because of this connection the prerogative writs became known as “high” writs, as distinct from ordinary writs which could be issued by judges in the superior courts. Second, the quote shows how the common law has been able to adapt old procedures to suit new and changing social and legal conditions. This process of adaption and recreation has remained a feature of the laws governing criminal appeals and reviews in England and Australia. Certiorari [1.60] Writing in 1910, Wrottesley and Jacobs describe the writ of certiorari: It is an original writ issuing from the Chancery or from King’s Bench Division in the King’s name to judges or officers of inferior courts, commanding them to certify and return records of a cause or matter to the High Court, or such court as may be mentioned, in order that the party suing may have more speedy justice … It arises out of the superintending jurisdiction over inferior courts, which was formerly vested in the Court of Kings Bench and which has by sect 34 of the Judicature Act, 1873, transferred to the KBD.11

The crucial difference between a criminal appeal and the writ of certiorari is explained thus: It differs from an appeal in the ordinary sense of the word as follows: that whereas appeal is always the creation of statute, and never exists apart from such statutory creation, certiorari is the common law right of all the King’s subjects, except in so far as the right has been abrogated by statute … And unlike appeal, it goes not to review the merits of the case, but to see whether the limited jurisdiction of an inferior court has been exceeded.12

Certiorari has always been an exercise in the supervisory jurisdiction of the superior courts as distinct from the appellate jurisdiction. There are, however, limits to the availability of certiorari: And whatever the practice may have been formerly there is no doubt that now, at all events, a certiorari will not go to any of the superior courts, eg the assize courts, or the Central Criminal Court, to bring up and quash a conviction … Nor apparently will a certiorari be granted to bring up a conviction before 10 T F T Pluncknett, A Concise History of the Common Law (5th ed, Butterworths London, 1956) p 173. 11 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 88 (footnotes omitted). The history of the writ can be traced back to at least the 14th century: O’Dea v The Magistrates Court of Victoria and Roamon Colledetti (unreported, Vic Sup Ct, Gillard J, 20 July 1998). 12 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 88.

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[1.70]

quarter sessions. For in such a case the proper method of appeal was formerly the writ of error and is now the procedure provided by the Criminal Appeal Act 1907.13

Thus, certiorari was not available to bring up the record of a conviction upon indictment. In those cases the only available remedy was the “writ of error”. The writ of error was not, however, available in respect to summary proceedings. The focus of certiorari was thus upon inferior courts: Certiorari to bring up and quash a conviction (and that is the only form of certiorari with which we are here concerned) will lie to the inferior criminal courts, eg justices in petty sessions, magistrates, and to quarter sessions and recorders sitting in borough sessions in so far as their appellate jurisdiction is concerned. That is to say, a conviction before quarter sessions or borough sessions is a fit subject for certiorari only when it is the result of a rehearing by way of appeal from justices in petty session, and not when it is a conviction upon indictment.14

The availability of certiorari from the court of quarter sessions sitting as an appeal court is reflected in the contemporary availability of certiorari to review decisions made by a County Court judge hearing an appeal from the Magistrates’ Court or the Children’s Court. During the 19th century the application for certiorari had to be made within six months after judgment.15 The procedure was by way of ex parte motion for an order nisi to show cause. The order nisi was then served upon the justices or the magistrate. An affidavit of service was then filed. At the hearing of the rule nisi, the justices could show cause why the writ should not be issued or could consent to the grant. A copy of the conviction had to be produced to the court before which the motion is made. The applicant was required to enter into a recognisance to prosecute the application. The process was thus cumbersome and time-consuming. Mandamus [1.70]

Blackstone describes the prerogative writ of mandamus thus:

A writ of mandamus is, in general, a command issuing in the king’s name from the Court of Kings bench, and directed to any person, corporation, or inferior court, of judicature within the Kings dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the Court of Kings Bench has previously determined, or at least supposes, to be consonant with right and justice. It is a high prerogative writ, 13 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 89. 14 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 91. Certiorari was available to review decisions of the summary courts from the end of the reign of Elizabeth I: R Pattendon, English Criminal Appeals 1844-1994 (Clarendon Press, Oxford, 1996) p 211. 15 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 107.

[1.80]

1 History and Development of Appeals in Victoria

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of a most extensive remedial nature … and issues in all cases where the party has a right to have something done, and hath no other means of compelling its performance.16

According to Wrottesley and Jacobs, the prerogative writ of mandamus began as an informal directive from the sovereign, then became a parliamentary writ and, finally, a writ of law: During the fourteenth and fifteenth centuries it seems to be no more than a letter missive from the sovereign, commanding the person to whom it was sent to perform a particular act or duty. And disobedience was punishable by attachment. It then became a parliamentary writ, issuing per regem et concilium, on petition, and was more specially used as a writ of restitution, ie for restoring persons to public offices, or even admitting them in the first place. The next step seems to have been that it should be dispensed by the Court of Kings Bench, and was used to command the performance of public duties generally, and was no longer confined to cases of restitution or public office. But it was only supposed to issue in cases where the law provided no specific legal remedy.17

Mandamus was a “high prerogative writ”. The power to award the writ was not delegated to ordinary judges between party and party but was reserved for the court where the sovereign was supposed to be personally present – that is, the Kings Bench Division. It also meant that the writ did not issue of right (as with ordinary writs) but rather at the discretion of the court upon probable cause being shown and “of the grace and favour of the sovereign acting through the Court of Kings Bench”.18 Prohibition [1.80] The administration of justice has always been within the Royal Prerogative and any attempt by the church or by private individuals to encroach upon this prerogative has been regarded with jealousy.19 The prerogative writ of prohibition was one of the means by which ecclesiastical courts were prevented from usurping jurisdiction in matters outside their jurisdiction. Blackstone defines the prerogative writ of prohibition as: A writ issuing properly only out of the Court of Kings Bench, being the King’s prerogative writ (but for the furtherance of justice, in some cases also out of the Court of Chancery, Common Pleas, or Exchequer), directed to the judge and parties of a suit in any inferior court, commanding them to cease from the 16 Blackstone, 3 Comm 110, referred to by F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 121. 17 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London,1910) p 121. 18 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 122. 19 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 153.

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[1.90]

prosecution thereof upon a suggestion that either the cause originally, or some collateral matter therein, does not belong to that jurisdiction, but to the cognisance of some other court.20

The writ was not available as of right and the courts have always had a discretion whether to grant or refuse the application.21 Originally only the Court of King’s Bench could grant the writ, but since the Judicature Acts any judge of the High Court may grant it. The writ could lie against any inferior criminal court such as recorders, courts of quarter sessions and justices in petty sessions. Habeas corpus [1.90] The right to personal liberty and a prohibition against unlawful restraint of the citizen has been recognised by the common law from at least the 13th century, if not earlier.22 It appears that originally habeas corpus was a means simply to bring a person before the courts. According to Pluncknett: Like a good many other common law writs, its history can be traced back to the early stage when legal procedure and administrative methods were still not distinguished, and together with the other prerogative writs of mandamus, certiorari and the rest, its ultimate origin is in a simple command from the Crown to one of its officials… Gradually the courts acquired the habit of issuing the writ in order to bring before them persons who had been committed by inferior jurisdictions – particularly the courts of cities and local franchises.23

The modern form of habeas corpus as a means to challenge the legality of a person’s detention emerged during the 17th century in the political context of struggles between the sovereign and Parliament. Wrottesley and Jacobs state: The origin of this writ would seem to be a matter of some doubt. In any case it was not before the troubles which arose between the Stuart kings and the parliaments that it came into prominence. Its value then as a summary remedy for illegal imprisonment or confinement made it a most important weapon in 20 Referred to by F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 153, without citing reference details. 21 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 153. 22 In Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 Bell J sets out a detailed historical account of the development of habeas corpus. His Honour stated: “Protecting people, especially the vulnerable, from unlawful restraint on their personal liberty is a fundamental purpose of the common law going back to Magna Carta 1297 (which is in force in Victoria), and the Charter”: at [5]; and “[i]n their various forms, the writs of habeas corpus have pre-Magna Carta medieval common law origins”: at [15]. 23 T F T Pluncknett, A Concise History of the Common Law (5th edButterworths, London, 1956) p 57. Bell J also states that the original form of habeas corpus was a means to bring people to court for procedural purposes: Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 at [15].

[1.90]

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23

the resistance offered to the Stuart pretension. And consequently it became the subject-matter of legislation on more than one occasion. In form the writ is a command to the person who is detaining the person on whose behalf the writ is sued out to attend the High Court of Justice with the body of the person detained and the reason for him being detained with a view to the person detained undergoing and receiving such matters as the court shall consider.24

Although several forms or type of habeas corpus were recognised at this time, the only form applicable to criminal appeals was the writ of habeas corpus ad subjiciendum.25 During the 17th century a number of Acts were passed to strengthen the availability of habeas corpus and applicable procedure.26 Bell J states: In the great constitutional struggles between the parliament and the sovereign in the sixteenth and seventeenth centuries … the doctrine of the supremacy of the parliament was absolutely established, with the result that the royal prerogatives of the monarchy were made subject to the law. The parliament exercised that supremacy to legislate for the habeas corpus acts, thus improving the availability of the writ and enhancing the capacity of the courts to vindicate the personal liberty of the people, which was always at the centre of the constitutional struggle.27

Although habeas corpus was a high writ, it was never available to challenge a conviction or a sentence of a superior court upon indictment.28 It was presumed that the conviction was correct. The only remedy for such a challenge was the writ of error and, after 1907, an appeal under the 24 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 160. Pluncknett similarly states: “but it was in the seventeenth century that habeas corpus fought its greatest battle. The Crown had established the right of imprisoning without trial upon a warrant signed by the Secretary of State and a few Privy Councillors, alleging ‘her Majesty’s Special Commandment’. Against so serious a claim of State absolutism habeas corpus became in the words of Seldon ‘the highest remedy in law for any man that is imprisoned’”: T F T Pluncknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) pp 57–58. 25 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 160. 26 The main purpose of the Habeas Corpus Act 1640 was to abolish the court of Star Chamber and to make habeas corpus available to persons committed to prison by the King or his Privy Councillors (excluding persons committed to prison to stand trial). The Habeas Corpus Act 1679 provided that any judge during term or vacation must issue the writ of habeas corpus if probable cause is shown, prisoners are not imprisoned beyond the realm, and the writ is to run in all privileged places. The 1679 Act also set out time limits for making an application and penalties for disobeying the writ. Wrottesley and Jacobs note that this Act did not apply to persons “convicted of crime” or persons committed for trial upon a charge of treason or felony (p 161). According to Sharpe, this period is when habeas corpus takes on its modern form: R J Sharpe, The Law of Habeas Corpus (2nd ed, Clarendon Press, Oxford, 1989) p 20. The Habeas Corpus Act 1816 did not apply to criminal matters. 27 Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 at [52]. 28 F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) p 162.

24

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[1.100]

Criminal Appeal Act 1907 (UK). Habeas corpus was limited to the question of whether the detention of the person was lawful or not. Further, habeas corpus did not provide a remedy of judicial review. In summary, prior to 1907 the prerogative writs briefly described above were available to challenge the lawfulness of various decisions and judgments of inferior courts in England. The Court of Kings Bench possessed an inherent common law jurisdiction to issue these writs. The Supreme Court Act 1986: Amalgamation of the prerogative writs [1.100] When the Victorian Supreme Court was established in 1852 it inherited the jurisdiction and powers of the superior courts at Westminster, including the jurisdiction to issue the prerogative writs discussed in the preceding section of this chapter.29 In general, the traditional procedures and practices of the English courts were followed by the Victorian Supreme Court. In 1986 significant changes were made to the procedure for issuing the prerogative writs. As part of broader changes to the operation of the Supreme Court, the Supreme Court Act 1986 (Vic) amalgamated the old prerogative writs into the more modern procedure of judicial review. Instead of issuing a prerogative writ, under the new procedures (set out in O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)), the court could issue a “judgment” or “order” in the nature of one of the prerogative writs. Section 3(6) of the Supreme Court Act 1986 provides: In this or any other Act or enactment or any subordinate instrument a reference to a writ of prohibition, mandamus, certiorari or ne exeat colonia by which the Court had before the commencement of this Act jurisdiction to grant any relief or remedy, is subject to sub-section (7), to be taken as a reference to the judgment or order by which the Court may after that commencement grant that relief or remedy under this Act and the Rules.

In addition, the Supreme Court (General Civil Procedure) Rules 2015 introduced new OO 56 and 57, which governed the application for, and granting of, an order in the nature of one of the prerogative writs. Order 56.01 provides that: (1) Subject to any Act, the jurisdiction of the Court to grant any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto shall be exercised only by way of judgment or order (including interlocutory order) and in a proceeding commenced in accordance with these Rules. (2) The proceeding shall be commenced by originating motion naming as defendant – (a) any person, if any, having an interest to oppose the claim of the plaintiff; and 29 M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (4th ed, Thomson Reuters, Sydney, 2009) p 21.

[1.100]

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(b) the court, tribunal or person in respect of whose exercise of jurisdiction or failure or refusal to exercise jurisdiction the plaintiff brings the proceedings.

Thus, if an application is successful the court will not issue a writ but instead will grant a judgment or order. The new procedure under O 56 does not affect the substantive powers and jurisdiction of the Supreme Court: Order 56 is concerned with procedure only and abolished the remedies of the old prerogative writs but nevertheless preserves the jurisdiction of the Court to make prerogative type orders. It is clear that the rules do not affect the common law jurisdiction of the court and it is clear that this Court has a common law jurisdiction to make an order in a form similar to the old prerogative writ of certiorari.30

Order 56 does not affect the principles which the Supreme Court applies in determining whether to grant relief.31 The purpose of these reforms was to provide a more flexible and simpler procedure for the grant of relief: The Order 56 procedure introduced a flexible procedure under which, for example, it would not be necessary to follow the two stage process of removing the proceeding, record or order made below to the superior court following which the court would consider whether error was shown. We now have a procedure by way of originating motion in which the court does not have to remove the record for evidentiary purposes but may examine oral reasons as part of the decision and the record, the content of which will normally be deposed to in the affidavit material filed in support of the motion.32

Order 56.01 does notinclude the writ of habeas corpus. The writ of habeas corpus is sui generis in that the hearing of the application does not determine if a particular decision of a court is beyond jurisdiction or in error, but simply whether the detention of a person is lawful. Order 57 governs the issue of a writ of habeas corpus ad subjiciendum, and to some extent, has streamlined the procedure.33 Order 57 is not, however, the source of the jurisdiction to grant habeas corpus. The source of the jurisdiction of the Supreme Court to grant 30 Peter O’Dea and Siew Boon Lou v The Magistrates’ Court of Victoria at Melbourne and Ramon Collodetti (unreported, Vic Sup Ct, Gillard J, 20 July 1998) at p 3. To the same effect, see Kay v DPP (Cth) [2003] VSC 264 at [23] and Kuek v Wellens [2000] VSC 326 at [16. 31 Kay v DPP (Cth) [2003] VSC 264. Order 56 is available to correct errors in the course of the County Court hearing an appeal from the Magistrates’ Court: Flynn v DPP [1998] 1 VR 322. For a detailed account of the availability of certiorari in criminal proceedings, see DPP v Kalba (2014) 69 MVR 137. 32 Iaonnidis v Guardian Holdings Pty Ltd (unreported, Vic Sup Ct, Smith J, 16 December 1994) at p 12. The applicant seeks judgment or an order inter parties instead of seeking ex parte an order nisi which, if granted, would result in proceedings entitled “The Queen against” the respondent ex parte the applicant: Randall v Wheeler (unreported, VicS up Ct, Fullagar J, 27 March 1991) at p 3. 33 See, eg, Censori v Chairman, Adult Parole Board [2015] VSC 106 and Censori v Adult Parole Board of Victoria [2015] VSCA 254.

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[1.110]

habeas corpus is the common law. According to Bell J, “[t]hat jurisdiction exists independently of any statute, though it is reinforced by the Habeas Corpus Act 1679 (Imp) and Habeas Corpus Act 1816 (Imp).”34 The applicant for the writ is the “plaintiff” and the person against whom the writ is sought is the “defendant”: O 57.03. The application for the writ is made on notice to the defendant: O 57.04. The notice is by summons (O 57.05) and the application is supported by an affidavit: O 57.06. If the person restrained cannot complete the affidavit, it can be made by some other person: O 57.07. In urgent cases the requirements of O 57.04 – 07 can be dispensed with: O 57.08. Modern statutory changes to the prerogative writs The English Criminal Appeal Act 1907 [1.110] The Criminal Appeal Act 1907 (UK) (hereafter “CAA”) not only revolutionised criminal appeals in England, but provided the blueprint for criminal appeals following conviction upon indictment, for all jurisdictions in Australia.35 Many of the statutory provisions, including procedural rules in the 1907 Act can be found in contemporary laws in Victoria. At the same time, many of the provisions in the English Act of 1907 were not followed in Victoria. For these reasons this section of the chapter sets out the key provisions in the CAA.36 [1.120]

Creation of the Court of Criminal Appeal

The CAA created the Court of Criminal Appeal and set out procedures by which all persons convicted on indictment, criminal information, or coroner’s inquisition, may, subject to certain restrictions regarding leave, appeal against: (i) conviction; (ii) sentence; or (iii) both conviction and sentence. Section 1(1) creates the Court of Criminal Appeal. The judges consisted of the Lord Chief Justice of England, and eight judges of the King’s Bench Division of the High Court. The Lord Chief Justice is the President of the court.37 34 Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 at [12]–[13]. 35 The CAA became operative from 18 April 1908. The CAA did not apply to Scotland or Ireland. Prior to the creation of the Court of Criminal Appeal in 1907 the only forms of appeal in England from conviction upon indictment were: (a) the trial judge could reserve a point of law for consideration by the Court of Crown Cases Reserved under the Crown Cases Act 1848; or (b) the “writ of error” was available where some error of law was apparent “upon the record” of the court, and that error was not suitable for reserving a point of law. The writ of error procedure was provided for by the Judicature Act 1873 (UK) s 57. Section 20 of the CAA abolished the writ of error. 36 The bulk of this section of the chapter has relied on F J Wrottesley and B Jacobs, The Law and Practice of Criminal Appeals (Sweet and Maxwell, London, 1910) (hereafter “Wrottesley and Jacobs”). 37 CAA s 1(3). Not less than three judges could sit on an appeal and the court could sit in two divisions: CAA s 1(2).

[1.140]

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It is important to note that the English Court of Criminal Appeal was a permanent, specialist court consisting of full-time appellate judges. By comparison, in Australia, all jurisdictions used the “Full Court” appellate model whereby the judges of the Full Court of the Supreme Court are selected on a rotating basis from trial court judges. A further appeal to the House of Lords from a decision of the Court of Appeal was possible if the Attorney-General certified that the decision involved a point of law of “exceptional public importance”.38 Otherwise the decision of the Court of Appeal was final. The Court of Appeal was a superior court of record.39 [1.130]

Registrar of the Court of Criminal Appeal

The office of “Registrar of the Court of Criminal Appeal” was created by the CAA s 2. Additional staff could be appointed to assist the Registrar. [1.140]

Grounds of appeal

Section 3 of the CAA provided: A person convicted on indictment may appeal under this Act to the Court of Criminal Appeal – (a) against the conviction on any ground of appeal which involves a question of law alone; and (b) with leave of the Court of Criminal Appeal or upon certificate of the judge who tried him that it is a fit case for appeal against conviction on any ground of appeal which involves a question of fact alone, or a question of mixed fact and law, or any other ground which appears to the court to be a sufficient ground of appeal; and (c) with leave of Court of Criminal Appeal, against the sentence passed on his conviction, unless the sentence is one fixed by law.40

An application for leave to appeal could be heard and determined by a single judge of the court.41 If the single judge refused to grant leave then that decision could be appealed to the whole of the Court of Appeal.42 On an appeal against conviction on a ground involving a question of law alone, the appellant could make an application to the Court of Appeal

38 CAA s 1(6). 39 CAA s 1(7). 40 A person who pleaded guilty could appeal under CAA s 3: R v Ettridge [1909] 25 TLR 352. Misdirection on a point of law constituted a point of law alone, but the omission to direct the jury on a point not taken at trial was not a misdirection: R v Myer [1908] 24 TLR 627. The trial judge could issue a certificate under s 3(b)CAA that the case is suitable for appeal even if the convicted person did not request the certificate: Criminal Appeal Rules 1908 (UK) r 6. 41 CAA s 17. 42 CAA s 17.

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[1.150]

that the question of law be dealt with under the Case Stated procedure, instead of being dealt with as an appeal under s 3 of the Act.43 [1.150]

Grounds for determining the appeal

Under the CAA s 4(1): The Court of Criminal Appeal upon any appeal against conviction shall allow the appeal if they think 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 whom the appellant was convicted should be set aside on the ground of a wrong decision 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 may, notwithstanding that they are of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred (emphasis added).

This section was subsequently copied in all jurisdictions in Australia. The last paragraph of s 4(1) has become known as “the proviso.” From its inception in 1907, there have been conceptual difficulties in understanding the relationship between the proviso and the rest of s 4(1).44 [1.160]

Disposition powers

Under the CAA s 4(2): Subject to the special provisions of this Act, the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.

The Court of Criminal Appeal was not given a power to order a retrial. This is a fundamental difference from the powers given to the Victorian Supreme Court seven years later. The absence of a power to order a retrial was problematic for the Court of Criminal Appeal and a number of reasons have been proposed to explain the decision not to give the court this power.45 43 Criminal Appeal Rules 1908 (UK) r 26(a). The Case Stated procedure is provided for under the Crown Cases Act 1848 (UK). 44 According to Wrottesley and Jacobs (in 1910), a distinction needs to be drawn between cases where a miscarriage of justice has taken place and cases where no miscarriage of justice has taken place. If no miscarriage of justice has taken place, then the courts will not grant leave to appeal and will not set aside a verdict “where there was before the jury evidence on which they might properly convict” (p 195). The Court of Criminal Appeal will not retry the case: R v Williamson (1908) 24 TLR 619. However, if there is a real fear that a miscarriage of justice has taken place, the court will set aside the verdict and quash the conviction even though there was before the jury evidence upon which they might properly convict: R v Lee [1908] 24 TLR 627. If the appeal is on the ground of a mistake in law, the court will quash the conviction “unless they are sure the conviction will work no injustice” (p 195): R v Coleman (1908) 24 TLR 798. 45 Wrottesley and Jacobs state (at p 196): “The absence of this power to order a new trial has been adversely commented upon by the judges on more than one occasion, and notably in the case of R v Dyson [1908] 2 KB 454.” Pattendon notes: “The

[1.180]

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If the appellant was not present at the appeal, the Registrar had the responsibility of notifying him or her of the result of the appeal.46 On an appeal against sentence, s 4(3) of the CAA provided: On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.

The early cases show that a sentence was not interfered with unless the judge had acted on a wrong principle of law, or had given undue weight to some of the facts proved in evidence.47 The court was prohibited from increasing the sentence on the basis of evidence which was not given at the trial.48 The phrase “warranted in law by the verdict” in s 4(3) was problematic in cases where the appellant had pleaded guilty because there was no jury verdict. However, in R v Etridge (1909) 25 TLR 352 the court held that the phrase includes a plea of guilty. [1.170]

Appeal on multiple counts

Under s 5(1) of the CAA: If it appears to the Court of Criminal Appeal that the appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed on the appellant at trial, or pass such sentence in substitution therefor as they think proper, and as may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant had been properly convicted.

[1.180]

Alternative verdicts

Section 5(2) of the CAA provided: Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of Lord Chancellor told the Upper House that it approached the confines of torture to put a man on trial twice for the same offence”; and “The Attorney-General said there was no point in ordering a retrial as the appellant would inevitably be acquitted and the practical difficulties of a new trial were almost overwhelming”: R Pattendon, English Criminal Appeals 1844-1994 (Clarendon Press, Oxford, 1996) p 190. However, the Court of Criminal Appeal inherited, from the Court of Crown Cases Reserved, the power to grant a venire de novo in limited circumstances where the original trial was void or a nullity (eg the judge was not properly qualified, a plea of guilty was not entered voluntarily, or the accused was not properly arraigned). In these circumstances there was no valid trial and thus a “retrial” is not the appropriate order. The Court of Crown Cases Reserved did not have a power to order a retrial. The Court of Criminal Appeal was finally given a power to order a retrial in 1964: Criminal Appeal Act 1964 (UK). 46 Criminal Appeal Rules 1908 (UK) rr 34 and 35. 47 Wrottesley and Jacobs (p 197), referring to R v Sidlow (1908) 24 TLR 754. 48 CAA s 9.

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[1.190]

the jury it appears to the Court of Criminal Appeal that the jury must have been satisfied of facts which prove him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial Court of Criminal Appeal as may be warranted in law for that other offence, not being an offence of greater severity.

[1.190]

Insanity

On any appeal, if it appears to the Court of Criminal Appeal that, although the appellant was guilty of the offence, he was insane at the time of the offence so as “not to be responsible in law for his actions”, the court may quash the sentence passed and order the appellant to be kept in custody as a criminal lunatic under the Trial of Lunatics Act 1883 (UK), in the same manner as if a special verdict had been found by the jury.49 [1.200]

Stays

Under s 6(1) of the CAA any restitution order made upon conviction on indictment was suspended: (a) in any case until the expiration of ten days from conviction; or (b) if notice of appeal or leave to appeal is given within ten days of conviction, until the determination of the appeal. Under s 6(2) of the CAA the court could also annul or vary a restitution order made at the trial even though the conviction is not quashed. Under s 7(2) of the CAA, if the sentence was death or corporal punishment, then the sentence was not to be executed until the expiry of the time for appealing, and if notice of appeal has been given, the sentence was not be executed until the determination of the appeal. [1.210]

Procedure

There are a number of procedural features in the CAA which have proved important for contemporary Courts of Appeal in Australia in the management of cases. [1.220]

Notice of appeal

Under s 7 of the CAA: Where a person convicted desires to appeal under this Act to the Court of Criminal Appeal, or to obtain the leave of that Court to appeal, he shall give notice of appeal or notice of application for leave to appeal in such manner as may be directed by rules of court within ten days of the date of conviction: Such rules shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires. Any case so presented shall be considered by the Court.

This section recognises the potential savings of the limited resources of the court by determining an application or appeal “on the papers”. 49 CAA s 5(4). This section did not permit the court to deal with a finding by the jury that the accused was unfit to stand trial. That finding could only be dealt with by way of a writ of habeas corpus.

[1.250]

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Under s 7(1) the court could extend time to appeal or to apply for leave to appeal. In deciding whether to grant leave to extend time, the court took into account whether the lateness was “wilful”.50 If a notice of application for leave to appeal is successful then no further notice of appeal is required; the notice of application for leave was deemed to be the notice of appeal.51 [1.230]

Trial judge’s notes

Under s 8 of the CAA the trial judge was required to provide his or her notes on an appeal against conviction or sentence, and shall also furnish a report “giving his opinion upon the case or upon any point arising in the case”. [1.240]

Orders for production of documents and witnesses

The Court of Criminal Appeal was given extensive powers to order the production of various forms of evidence at the appeal. In summary, under the CAA s 9, the court could order: (a) The production of any document, exhibit or other thing connected with the proceedings; (b) Any witness who would have been compellable at the trial to attend and be examined, or order the witness to be examined by any judge of the court or justice of the peace, and any depositions taken to be admitted; (c) The evidence if tendered of any witness (including the appellant) who was a competent but not compellable witness to be received, “and if the appellant makes an application for the purpose, of the husband or wife of the appellant, in cases where the evidence of the husband or wife could not have been given at the trial except on such application.” (d) A particular question to be referred to a special commissioner appointed by the Court (eg prolonged examination of documents or scientific issues); and (e) The appointment of an expert as an assessor for the court.

This section did not give the appellant a right to call witnesses at the appeal and all of the above evidence could only be admitted at the discretion of the court. [1.250]

Legal aid

The Court of Criminal Appeal had broad power to order legal representation for an appellant. Section 10 of the CAA provided: The Court of Criminal Appeal may at any time assign to an appellant a solicitor and counsel or counsel only in any appeal or proceedings preliminary or incidental to an appeal in which, in the opinion of the Court, it appears desirable in the interests of justice that the appellant should have legal aid, and that he has not sufficient means to enable him to obtain that aid. 50 Criminal Appeal Rules 1908 (UK) r 45. 51 Criminal Appeal Rules 1908 (UK) r 22.

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[1.260]

The general practice was that legal aid would not be granted in appeals against sentence except in “special circumstances”.52 [1.260]

Presence of appellant

Section 11 of the CAA provided that: (1) An appellant, notwithstanding that he is in custody, shall be entitled to be present, if he desires it, on the hearing of his appeal, except when the appeal is on some ground involving a question of law alone, but, in that case, and on an application for leave to appeal and on any proceedings preliminary or incidental to an appeal, shall not be entitled to be present, or where the Court gives him leave to be present. (2) The power of the Court to pass any sentence under this Act may be exercised notwithstanding that the appellant is for any reason not present.

[1.270]

Appearance for the respondent

Under s 12 of the CAA it was the duty of the Director of Public Prosecutions to appear for the Crown on every appeal, except where a solicitor for a government department or a private prosecutor in the case of a private prosecution undertook the defence of the appeal.53 [1.280]

Costs

No costs were allowed to either party on the hearing of an appeal or for proceedings preliminary or incidental to an appeal.54 The expenses of a solicitor or counsel appointed to assist the appellant were defrayed up to an amount determined by the court.55 [1.290]

Bail

The Court of Appeal was empowered to admit an appellant to bail pending the determination of the appeal.56 Prisoners who were remanded in custody and had applied to appeal or seek leave to appeal were supposed to be subject to different prison rules than sentenced prisoners.57 Any time spent on bail pending the appeal or any time spent in custody where the appellant was “specially treated as an appellant under this section” did not count as part of any term of imprisonment.58 [1.300]

Role of Registrar

The Registrar was required to take all necessary steps to obtain a hearing for the appeal or the application for leave, and was required to provide to 52 R v Crawley (1908) 24 TLR 620. 53 The office of Director of Public Prosecutions was first created by the Prosecution of Offences Act 1879 (UK). In 1907 private prosecutions were not uncommon. 54 CAA s 13(1). 55 CAA s 13(2). 56 CAA s 14(2). 57 CAA s 14(1). Examples include being separated from the other prisoners, and being given pencil and paper. 58 CAA s 14(3).

[1.310]

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33

the court any exhibits and the like which appeared necessary for the proper determination of the appeal.59 If it appeared to the Registrar that any notice of appeal against conviction on the ground of a question of law “[did] not show any substantial grounds of appeal”, the Registrar could refer the notice of appeal to the Court of Appeal for summary determination. The court could then dismiss the appeal without requiring any persons to attend the hearing.60 This was an important mechanism to enable the court to screen out any unmeritorious appeals or applications. The Registrar was required to furnish all necessary forms and paperwork to any person who demanded such forms, and to officers of the court and the governors of prisons so the governors could make the forms available to prisoners.61 The Registrar could report to the court any case where, although the appellant had not made an application for legal aid, the Registrar was of the view that it was appropriate for legal aid to be granted.62 The Registrar was also required to arrange for copies of the transcript of the trial proceedings and to provide same to the Court.63 [1.310]

Powers of a single Appeal Judge

Section 17 of the CAA provided that: The powers of the Court of Criminal Appeal under this Act to give leave to appeal, to extend the time within which notice of appeal or application for leave to appeal may be given, to assign legal aid to an appellant, to allow the appellant to be present at any proceedings in cases where he is not entitled to be present, and to admit an appellant to bail, may be exercised by a judge of the Court of Criminal Appeal in the same manner as they may be exercised by the Court, and, subject to the same provisions; but, if the judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Court of Appeal as duly constituted for the hearing and determining of appeals under this Act.

This was an important provision in that it enabled the court to save considerable resources and time by not requiring three or more judges of the court to determine these issues. At the same time s 17 provided a protection for the appellant in permitting the appellant to elect for a rehearing. 59 CAA s 15(1). 60 CAA s 15(2). 61 CAA s 15(4). 62 CAA s 15(5). 63 CAA s 16(1). A party to the appeal could also obtain a copy of the transcript upon payment of the relevant fee.

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[1.320]

The single judge who heard these types of matters could also refer the case to the Court of Appeal if he or she thought it appropriate.64 [1.320]

Rules of Court

Section 18 of the CAA permitted the court to make rules for the purposes of the Act, subject to the approval of the Lord Chancellor and, in the case of rules affecting the governors of prisons, also the approval of the Secretary of State. The approval of the Lord Chief Justice and the judges of the Court of Criminal Appeal was also required. [1.330]

Prerogative of mercy

Section 19 of the CAA provided that nothing in the Act affected the operation of the prerogative of mercy. However, if the Secretary of State received a petition of mercy then the Secretary may: (a) refer the whole case to the Court of Criminal Appeal and the case shall then be heard and determined by the Court of Appeal as in the case of an appeal by a person convicted; or (b) if he desires the assistance of the Court of Criminal Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court of Criminal Appeal for their opinion thereon, and the Court shall consider the point so referred and furnish the Secretary of State with their opinion accordingly. These provisions continue to operate in Victoria and other jurisdictions in Australia. [1.340]

Abolition of writs of error

The previous remedies of writs of error were abolished by s 20 of the CAA and the “powers and practices now existing in the High Court in respect of motions for new trials or the granting thereof in criminal cases are hereby abolished”. This section thus abolished the form of appeal which lay to the King’s Bench Division and to the Court of Appeal, and to the House of Lords in respect to errors of law apparent on the face of the record. [1.350]

Case Stated

Section 20(4) of the CAA provided that all jurisdiction under the Crown Cases Act 1848 (UK) regarding questions of law (which had transferred to judges of the High Court by virtue of s 47 of the Supreme Court of Judicature Act 1873 (UK)) shall be vested in the Court of Criminal Appeal. Further, on an appeal against conviction on a point of law, the Court of Criminal Appeal could decide that it would be more appropriate if the case was dealt with by way of the Case Stated procedure, in which case the trial judge was required to state a case.65 64 R v Munns (1908) 24 TLR 627, although in this case the court recommended that an application for leave to appeal should be heard in the first instance by the court as a whole. 65 Criminal Appeal Rules 1908 (UK) r 26.

[1.380]

[1.360]

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35

Summary

The above provisions represented a major innovation in English law in respect to criminal appeals following a trial upon indictment. The CAA introduced what could be called “modern” procedures for criminal appeals which, for the first time, recognised the right of a convicted person at trial to appeal their conviction and sentence. Apart from this new substantive right, the CAA also recognised principles of natural justice for the appellant in terms of the availability of legal aid, and the right to elect for some decisions made by a single judge to be reheard by the court as a whole. This legislative framework was in effect later copied in Victoria (and the other jurisdictions in Australia) with some modifications. Perhaps the most significant modification in Australia was giving the Court of Appeal a power to order a retrial. In the next section the adoption of the CAA in Victoria is outlined The Criminal Appeal Act 1914 (Vic) [1.370]

Pre-1914

Prior to the Criminal Appeal Act 1914 (Vic) (hereafter “CAAV”), there was no statutory right for a person to appeal from conviction or sentence following trial upon indictment. The major forms of review were the Case Stated procedure, the writ of error, and the prerogative of mercy. The prerogative writs were not generally available in respect to convictions and sentences in the higher courts. On a Case Stated, the Supreme Court could order a venire de novo or a new trial for treason, felonies, and misdemeanours.66 However, the trial judge had a discretion whether to reserve a point of law for consideration of the Supreme Court of Victoria, but the convicted person had no right to request the procedure. A Case Stated could not raise a question of fact. A writ of error could only appeal an alleged error on the face of the record of court, and could not raise a question of fact. For the first time the CAAV provided a statutory right to appeal a conviction and sentence. [1.380]

Grounds of appeal

Section 3 of the CAAV provided: A person convicted on indictment may appeal under this Act to the Full Court – 66 See An Act for Improving the Administration of Criminal Justice 1852 (16 Victorie) s XXVIII. The section provided that if during the trial of a person convicted of treason, felony or misdemeanour “any question of difficulty in point of law shall arise, it shall be lawful for such Court in its discretion to reserve such question of law for consideration and determination of the Judges of the Supreme Court”. If the judge reserved a point of law then the execution of the sentence was respited and the convicted person could be admitted to bail or remanded in custody. After the point of law was reserved the trial judge would then “state a case briefly setting forth the circumstances and the question of law so reserved”. The Case Stated was then transmitted to the Supreme Court.

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[1.390]

(d) against the conviction on any ground of appeal which involves a question of law alone; and (e) with leave of the Full Court or upon certificate of the Judge or Chairman of General Sessions before whom he was tried that it is a fit case for appeal against conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the Full Court to be a sufficient ground of appeal; and (f) with leave of the Full Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.

The term “Full Court” was defined in the Act to mean: any three or five Judges of the Supreme Court and notwithstanding anything contained in any other Act any Judge before whom any person was tried and convicted or by whom any person was sentenced may sit on the hearing of the appeal by such person.67

The use of the Full Court model was to continue in Victoria until 1994 when the Court of Appeal was created. An application for leave to appeal could now be heard and determined by a single judge of the court.68 If the single judge refused to grant leave then the appellant could elect to have the application determined by the Full Court.69 [1.390]

Grounds for determining appeal

Under the CAAV s 4(1): The Full Court on any such appeal against conviction shall allow the appeal if they think 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 whom 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 Full Court may, notwithstanding that they are of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred” (emphasis added).

This section was subsequently copied in all jurisdictions in Australia and comprised what became known as the “common form” provisions. The last paragraph of s 4(1) has become known as “the proviso”. Despite the apparently straightforward wording of s 4(1), the precise meaning of its words has become the subject of numerous appellate court decisions in Australia. One of the controversial issues has been the relationship between a “miscarriage of justice” and the term “substantial miscarriage of justice” in the proviso. This issue is discussed further in Chapter 6 of this book. 67 CAAV s 2. 68 CAAV s 17. 69 CAAV s 17.

[1.420]

[1.400]

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Disposition powers

Under the CAAV s 4(2): Subject to the special provisions of this Act, the Full Court shall, if they allow an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.

The power to direct a new trial was a fundamental difference with the English CAA. It appears that the judges of the Supreme Court of Victoria did not initially support the power to order a new trial but were prepared to accept the government’s decision.70 The power to order a new trial was, however, consistent with the power of the Supreme Court to order a new trial on a Case Stated. Where a new trial was directed, the Full Court could either remand the convicted person in custody or admit him or her to bail.71 On an appeal against sentence, s 4(4) of the CAAV provided: On an appeal against sentence the Full Court shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such sentence warranted in law (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.

The court was prohibited from increasing the sentence on the basis of evidence which was not given at the trial.72 The phrase “warranted in law by the verdict” in s 4(3) of the English Act was replaced by “warranted in law” in the Victorian Act to overcome the difficulty that occurred where the appellant had pleaded guilty. [1.410]

Appeal on multiple counts

Under s 5(1) of the CAAV: If it appears to the Full Court that the appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed on the appellant at trial, or pass such sentence in substitution therefor as they think proper and as may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant has been properly convicted.

[1.420]

Alternative verdicts

Section 5(2) of the CAAV provided: Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Full Court that the jury must have been satisfied of 70 Parliament of Victoria, Legislative Council, Second Reading Speech (17 December 1914) pp 274, 277. 71 CAAV s 4(3). 72 CAAV s 9.

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[1.430]

facts which prove him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being an offence of greater severity.

[1.430]

Insanity

On any appeal, if it appeared to the Full Court that, although the appellant was found guilty of the offence, he or she was insane at the time of the offence so as “not to be responsible according to law for his [or her] actions”, the court could quash the sentence passed and order the appellant to be kept in strict custody until the Governor’s pleasure is known in the same manner as if a special verdict had been found by the jury under s 458 of the Crimes Act 1890 (Vic).73 [1.440]

Stays

Under s 6(1) of the CAAV any restitution order made upon conviction on indictment was suspended: (a) in any case until the expiration of ten days from conviction; and (b) if notice of appeal or leave to appeal is given within ten days of conviction, until the determination of the appeal. Under s 6(2) of the CAAV the Full Court could also annul or vary a restitution order made at the trial even though the conviction was not quashed. Under s 7(2)CAAV if the sentence was death or corporal punishment, then the sentence was not to be executed until the expiry of the time for appealing, and if notice of appeal had been given, the sentence is not be executed until the determination of the appeal. [1.450]

Procedure

There were a number of procedural features in the CAAV which have subsequently proved important for the contemporary Victorian Court of Appeal in the management of cases. [1.460]

Notice of appeal

Under s 7 of the CAA: Where a person convicted desires to appeal under this Act to the Full Court or to obtain the leave of that Court to appeal he shall give notice of appeal or notice of application for leave to appeal in such manner as may be directed by Rules of Court within ten days of the date of conviction: Such rules shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires. Any case so presented shall be considered by the Full Court.

An appellant or applicant thus has a choice between an application or appeal “on the papers” or by way of oral argument and submissions. Under CAAV s 7(1), the court could extend time to appeal or for applying for leave to appeal. 73 CAAV s 5(4).

[1.500]

[1.470]

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Trial judge’s notes

Under s 8 of the CAAV the trial judge was required to provide his or her notes on an appeal against conviction or sentence, and shall also furnish a report “giving his opinion upon the case or upon any point arising in the case”. [1.480]

Orders for production of documents and witnesses

The Full Court was given extensive powers to order the production of various forms of evidence at the appeal. In summary, under CAAV s 9, the court could order: (a) the production of any document, exhibit or other thing connected with the proceedings; (b) any witness who would have been compellable at the trial to attend and be examined, or order the witness to be examined by any judge of the court or justice of the peace, and any depositions taken to be admitted; (c) the evidence if tendered of any witness (including the appellant) who is a competent but not compellable witness to be received, “and if the appellant consents of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with such consent”; (d) a particular question to be referred to a special commissioner appointed by the court (for example, prolonged examination of documents or scientific issues); and (e) the appointment of an expert as an assessor for the court. This section did not give the appellant a right to call witnesses at the appeal and all of the above evidence could only be admitted at the discretion of the court. [1.490]

Legal aid

The Attorney-General had broad power to order legal representation for an appellant. Section 10 of the CAAV provided: The Attorney-General shall assign to an appellant a solicitor and counsel or counsel only in any appeal or new trial or proceedings preliminary or incidental to an appeal or new trial in which, in the opinion of the Attorney-General it appears desirable in the interest of justice that the appellant should have legal aid and that he has not sufficient means to enable him to obtain that aid.

[1.500]

Presence of appellant

Section 11 of the CAAV provided that: (1) An appellant notwithstanding that he is in custody shall be entitled to be present if he desires it on the hearing of his appeal except when the appeal is on some ground involving a question of law alone but in that case and on an application for leave to appeal and on any proceedings preliminary or incidental to an appeal, shall not be entitled to be present except where Rules of Court provide that he shall have the right to be present or where the Full Court gives him leave to be present.

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[1.510]

(2) The power of the Full Court to pass any sentence under this Act may be exercised notwithstanding that the appellant is for any reason not present.

[1.510]

Appearance for the respondent

Under s 12 of the CAAV it was the duty of the Attorney-General or counsel on his behalf to appear for the Crown on every appeal under the CAAV and, in the case of a private prosecution, a private prosecutor could undertake the defence of the appeal. [1.520]

Costs

No costs were allowed to either party on the hearing of an appeal or new trial or for proceedings preliminary or incidental to an appeal or new trial.74 The expenses of a solicitor or counsel appointed to assist the appellant were defrayed up to an amount allowed by the Taxing Master of the Supreme Court.75 [1.530]

Bail

The Full Court was empowered to admit an appellant to bail pending the determination of the appeal.76 Prisoners who were remanded in custody and had applied to appeal or seek leave to appeal were supposed to be subject to different prison rules than sentenced prisoners.77 Any time spent on bail pending the appeal, or any time spent in custody where the appellant was “specially treated as an appellant under this section”, did not count as part of any term of imprisonment.78 [1.540]

Role of Prothonotary

The Prothonotary was required to take all necessary steps to obtain a hearing for the appeal or the application for leave, and was required to provide to the court any exhibits and the like which appeared necessary for the proper determination of the appeal.79 If it appeared to the Prothonotary that any notice of appeal against conviction on the ground of a question of law “does not show any substantial grounds of appeal”, the Prothonotary could refer the notice of appeal to the Full Court for summary determination. The court could then dismiss the appeal without requiring any persons to attend the hearing.80 This was an important mechanism to enable the court to screen out any unmeritorious appeals or applications. 74 CAAV s 13(1). At common law the general principle is that no costs are awarded on a criminal trial: Wright, Dancie and Currie (1992) 77 A Crim R 67 at 68; Perkins v County Court of Victoria (2000) 2 VR 246; R v Payara (2012) 36 VR 326. 75 CAAV s 13(2). 76 CAAV s 14(2). 77 CAAV s 14(1). Examples include being separated from the other prisoners, and being given pencil and paper. 78 CAAV s 14(3). 79 CAAV s 15(1). 80 CAAV s 15(2).

[1.570]

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41

The Prothonotary was required to furnish all necessary forms and paperwork to any person who demands such forms, and to officers of the court and the governors of prisons so the governors can make the forms available to prisoners.81 The Prothonotary could report to the Attorney-General any case where, although the appellant has not made an application for legal aid, the Prothonotary was of the view that it is appropriate for legal aid to be granted.82 The Prothonotary was also required to arrange for copies of the transcript of the trial proceedings and to provide same to the court.83 [1.550]

Powers of a single Appeal Judge

Section 17 of the CAAV provided that: The powers of the Full Court under this Act to give leave to appeal, to extend the time within which notice of appeal or application for leave to appeal may be given, to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without leave, and to admit an appellant to bail, may be exercised by any Judge of the Supreme Court in the same manner as they may be exercised by the Court, and, subject to the same provisions; but, if the Judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Full Court.

This was an important provision in that it enabled the court to save considerable resources and time by not requiring three or more judges of the court to determine these issues. At the same time, s 17 provided a protection for the appellant in permitting the appellant to elect for a rehearing. [1.560]

Rules of Court

Section 18 of the CAAV permitted the judges of the Supreme Court to make rules for the purposes of the Act. [1.570]

Prerogative of mercy

Section 19 of the CAAV provided that nothing in the Act affected the operation of the prerogative of mercy. However, if the Attorney-General received a petition of mercy then the Attorney-General could: (a) refer the whole case to the Full Court and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted; or (b) if he desires the assistance of the Judges of the Full Court on any point arising in the case with a view to the determination of the petition, refer that point to such Judges for their opinion thereon, and such Judges or any 81 CAAV s 15(4). 82 CAAV s 15(5). 83 CAAV s 16(1). A party to the appeal could also obtain a copy of the transcript upon payment of the relevant fee.

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[1.580]

three of them shall consider the point so referred and furnish the Attorney-General with their opinion thereon accordingly.

These provisions continue to operate in Victoria and other jurisdictions in Australia. [1.580]

Abolition of writs of error

The previous remedy of writs of error were abolished by s 20 of the CAAV and the “powers and practice now existing in the Supreme Court in respect of motions for new trials or the granting thereof in criminal cases, are hereby abolished”. Section 20 thus effectively terminated the old system of appeals in criminal matters upon indictment. [1.590]

Case Stated

Section 20(2) of the Act provided that all jurisdiction under the Crimes Act 1890 (Vic) regarding questions of law shall be vested in the Full Court. Further, on an appeal against conviction on a point of law, the Full Court could decide that it is more appropriate if the case is dealt with by way of the Case Stated procedure, in which case the trial judge was required to state a case.84 [1.600]

Summary

The above provisions in the CAAV were essentially copied into the Crimes Act 1915 (Vic) and repeated in subsequent versions of the Crimes Act, including the Crimes Act 1958 (Vic), until 2009 when the Criminal Procedure Act 2009 (Vic) was enacted. The Criminal Procedure Act 2009 (Vic) [1.610] The Criminal Procedure Act 2009 (Vic) (hereafter “CPA”) introduced the most comprehensive reforms to all aspects of criminal procedure in Victoria since the Criminal Appeal Act 1914 (Vic). The CPA has modernised and rationalised procedures for summary hearings, committals, pre-trial, trial and appeals.85 The CPA achieved this by consolidating laws previously scattered through a range of Acts, abolishing redundant and obsolete provisions, and by providing uniformity of approach whenever possible. This section of the chapter outlines the major changes introduced by the CPA to appeals and other forms of review. It is not intended to discuss each and every reform introduced by the CPA but only the most significant changes for the purposes of this chapter. 84 For a history of the Case Stated procedure, see R v Gee (2003) 212 CLR 230; [2003] HCA 12. 85 For an overview of the scope and effect of the CPA, see Victorian Department of Justice, Criminal Procedure Act 2009 – Legislative Guide, Criminal Law – Justice Statement (February 2010); and Parliament of Victoria, Legislative Assembly, Second Reading Speech (4 December 2008) p 4969 (Robert Hulls).

[1.630]

[1.620]

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Grounds to appeal conviction

Under the Crimes Act 1958 (Vic) s 567 the grounds of appeal were expressed in terms of: (a) an appeal on a question of law as of right; (b) upon the certificate of the trial judge that the case is “fit” for appeal on any ground of appeal which involves a question of fact alone or a question of mixed law and fact; (c) with leave of the Court of Appeal on any ground of appeal which involves a question of fact alone or a question of mixed law and fact; and (d) with leave of the Court of Appeal against sentence.86 This complex provision was replaced by s 274 of the CPA which provides that a person can appeal conviction “on any ground of appeal if the Court of Appeal gives leave to appeal”. Section 274 has simplified the grounds of appeal and, by requiring leave in all cases, has eliminated any appeal as of right. [1.630]

Test to determine appeal against conviction

Under the Crimes Act 1958 (Vic) s 568(1) the grounds for allowing an appeal were expressed in a single paragraph. These grounds can be broken down into the following three limbs: 1. The verdict of the jury is “unreasonable or cannot be supported having regard to the evidence”; or 2. A “wrong decision on any question of law”; or 3. “On any ground there was a miscarriage of justice”. A proviso to s 568(1) 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 actually occurred”. The prosecution carried the burden of satisfying the Court of Appeal that the proviso should be applied. Section 568(1) was derived from s 4(1) of the CAAV. Section 568(1) of the Crimes Act 1958 required the Court of Appeal to (in effect) engage in a two-stage process of reasoning. The first stage was to determine if any of the three grounds of appeal was satisfied. If one or more grounds were satisfied, the court would apply the proviso. It was, however, generally accepted that if the court accepted that the verdict of the jury was unreasonable or could not be supported having regard to the evidence (first limb), then the proviso would not be applied. Section 568(1) of the Crimes Act 1958 has been replaced by s 276 of the CPA. Section 276(1) now provides that the Court of Appeal must allow an appeal against conviction if the appellant satisfies the court that – 86 It appears that, in practice, it was exceedingly rare for an applicant to rely on (a) or (b). See the comments of Callaway J in R v Gallagher [1998] 2 VR 671 at 689: “the unheard of appellant who takes advantage of s 567(a) or (b)”.

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[1.640]

(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 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.

These changes were implemented because of the conceptual and linguistic difficulties arising from the interrelationship between a “miscarriage of justice” and a “substantial miscarriage of justice” in s 568(1) of the Crimes Act 1958.87 Under CPA s 276(1) it can be seen that there is no change to the first limb of the test. If the verdict of the jury is unreasonable or cannot be supported having regard to the evidence then there has been a miscarriage of justice and the appeal must succeed. The second limb in CPA s 276(1) has been extended to include any “error or an irregularity in, or in relation to, the trial”. This would include, for example, judicial error in directions, as well as irregularities in relation to the selection or deliberations of the jury. Further, a “substantial miscarriage of justice” must be demonstrated. The third limb now refers to any other “reason” (compare “on any ground”) for a “substantial miscarriage of justice”. The proviso has been abolished. These changes make it clear that the appellant has the burden of satisfying the Court of Appeal that a substantial miscarriage of justice has occurred. What was, in effect, a two-stage test has been replaced with a one-stage test. [1.640]

Test for deciding appeals against sentence

The Crimes Act 1958 (Vic) s 568(4) stated: On an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed or a different order made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law.

The difficulty with this formulation is that it does not require the Court of Appeal to first find error in the sentence imposed before resentencing, and it appears to give the court an unfettered discretion. Accordingly, the new CPA s 281(1) now provides that the Court of Appeal must allow the appeal if satisfied that: “(a) there is an error in the sentence first imposed; and (b) a different sentence should be imposed”.88 87 See, eg, Weiss v The Queen (2005) 224 CLR 300; and Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18. 88 The prerequisite of establishing error also applies to a DPP appeal against sentence under CPA s 289 and an appeal from the County Court to the Court of Appeal under CPA s 285 (ie where the County Court judge has imposed a term of imprisonment and the magistrate had not).

[1.680]

[1.650]

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Test for leave to appeal sentence

Prior to 2009, in deciding whether to grant leave to appeal a sentence, the Court of Appeal applied the common law test of whether there was “a reasonably arguable ground of appeal”.89 The difficulty with this test was that there was no consideration of the likelihood of the appeal succeeding, which, from a practical or managerial perspective, was the key issue. Section 280(1) of the CPA introduced a new test on an application (to a single Judge of Appeal) for leave to appeal: (2) An application for leave to appeal under section 278 may be refused if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed. (3) An application may be refused under subsection (2) even if the Judge of Appeal considers there may be a reasonably arguable ground of appeal.90

If the single judge refuses the application for leave, the applicant can elect to have the application reheard by the Court of Appeal (constituted by two or more Judges of Appeal) under CPA s 315(2). [1.660]

Summary dismissal of application for leave to appeal

The Crimes Act 1958 (Vic) s 580(2) allowed the Court of Appeal to summarily dismiss an application for leave to appeal a conviction where the Registrar had referred the notice of appeal to the court. Section 580(2) was derived directly from the CAAV s 15(5). That power has not been included in the CPA because the power is inconsistent with the Charter of Human Rights and Responsibilities Act 2006 (Vic). [1.670]

Warning the appellant

The CPA s 281(3) introduced a new requirement that if the Court of Appeal is considering imposing a more severe sentence than the sentence first imposed, then the court must warn the appellant as early as possible.91 [1.680]

Removal of double jeopardy considerations

The CPA introduced a number of reforms to prohibit the Court of Appeal from taking into account double jeopardy considerations on a DPP appeal against sentence. For example, under CPA s 289, on a DPP appeal against sentence (under CPA s 287), the Court of Appeal must not take into account any element of double jeopardy when considering whether the 89 R v Raad (2006) 15 VR 338; [2006] VSCA 67. 90 The new test in CPA s 280 was based on the minority judgment in R v Raad (2006) 15 VR 338; [2006] VSCA 67 at 348 (VR). Section 280(3) was subsequently amended to read that the Court of Appeal may refuse an application for leave to appeal under s 278 if “there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first passed”. 91 This reform implements a recommendation of the Victorian Parliament Law Reform Committee in its report, De Novo Appeals to the County Court (October 2006) p xiii. Under the CPA s 256(3) the same requirement also applies to an appeal to the County Court from the Magistrates’ Court in CPA s 283.

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[1.690]

appeal should be allowed.92 This changed the previous approach at common law whereby double jeopardy considerations could be taken into account on a Crown appeal against sentence.93 [1.690]

Interlocutory appeals

Arguably the most important reform introduced by the CPA was the introduction of interlocutory appeals – which are dealt with in Chapter 5 of this book. Prior to the CPA, the general policy was that interlocutory appeals in criminal matters were highly discouraged because such appeals tended to fragment proceedings and result in inconvenience and time-wasting. Of particular concern was the effect on juries, once the trial had commenced. Similar concerns apply to the Case Stated procedure. The CPA has reversed this traditional approach by permitting interlocutory appeals from particular pre-trial and trial decisions made in the County Court and Supreme Court. Interlocutory appeals have allowed questionable rulings and decisions of the trial judge to be challenged at an early stage in the proceedings, thus reducing the number of post-trial appeals against conviction.94 The circumstances in which an interlocutory appeal can be brought are, however, tightly constrained. [1.700]

Case Stated

Under the Case Stated procedure a trial judge can reserve a question of law for determination of the Court of Appeal. The Court of Appeal determines the question and the determination is returned to the trial judge. Prior to the CPA, the Crimes Act 1958 (Vic) s 446 regulated the Case Stated procedure. In summary, s 446 covered two situations. First, under s 446(1) where a person had been convicted following a trial in the County Court or the Supreme Court, the trial judge had a discretion to reserve “any question of difficulty in point of law” and request the Court of Appeal to determine the question. The trial judge could respite execution of the judgment until the point of law had been determined by the Court of Appeal. The second situation was where the question of law had arisen before the jury was empanelled. In this case the trial judge could, on the application of the accused, determine that “the question of law is such that its determination could render the conduct of the trial unnecessary” and reserve the question of law for consideration of the Court of Appeal. The trial judge was required to adjourn the trial until the question was determined. 92 CPA s 289(2). 93 See, eg, R v Clarke [1996] 2 VR 520. 94 On a successful interlocutory appeal by the accused, the Court of Appeal can grant an indemnity certificate pursuant to the Appeal Costs Act 1998 (Vic) s 15A and under s 15B on a successful interlocutory appeal by the prosecution.

[1.730]

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47

In either situation the trial judge then stated a case which set out the particular question and the circumstances in which the question arose. The Court of Appeal could affirm or quash a conviction and could order a new trial. The CPA has significantly altered these procedures. The first reform is that the power to reserve a question of law after conviction has been abolished. Given that the accused has a statutory right to appeal a conviction on a question of law (with leave of the Court of Appeal), the Case Stated procedure post-conviction is obsolete. Further, the CPA s 302 provides that if a question of law arises “before or during the trial” the court can reserve a question of law, either on its own motion, or an application of the accused or the prosecution.95 Under CPA s 302 the court should not reserve a question of law unless the court thinks “it is in the interests of justice to do so”. In deciding whether it is in the interests of justice, the court must take into account all the factors set out in CPA s 302(2)(a) – (b). Those factors are the same factors that the Court of Appeal must take into account in deciding whether to grant leave to appeal an interlocutory decision.96 [1.710]

Stay of sentence and related orders

Prior to the CPA the law regarding a stay of sentence (and related orders) pending the appeal was limited and unclear. The CPA now sets out clear and simple rules to regulate this topic.97 [1.720]

New evidence on appeal

The Crimes Act 1958 (Vic) s 574 proviso stated that the Court of Appeal cannot increase a sentence on a DPP appeal on the basis of evidence which was not presented at the trial. The section provided an exception where the appeal was based on a breach of undertaking to assist the authorities. Section 321(1) of the CPA confirms this general prohibition but adds a second exception – namely, where the originating court was misled at the sentencing hearing as to material facts and an increase in sentence is in the interests of justice. The Ashley-Venne reforms: 2011 [1.730] Criminal appeals create enormous challenges in “managing” the number of cases coming before the court. If the appellate court is not able 95 Under the CPA s 337 a power or discretion conferred on a court may be exercised by the court “on the application of a party or on its own motion”. 96 Under CPA s 297, if a court states a case under CPA s 305, the accused can apply to the Court of Appeal for an indemnity certificate pursuant to s 15C of the Appeal Costs Act 1998 (Vic). 97 Section 309(1) of the CPA creates a presumption that sentences are not stayed during the appeal period. However, the trial judge or the Court of Appeal can order a stay of a sentence under CPA s 309(2). Some specific orders are stayed (eg a restitution order under the Sentencing Act 1991 (Vic)) under the CPA s 311(1). An order for destruction of property or forfeiture of property should not be executed during the appeal period: CPA s 312.

48

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[1.740]

to keep up with the number of cases coming before it then a significant backlog of cases will build up with resultant delays and other associated problems. In 2011 the Victorian Supreme Court embarked on the most significant reforms to criminal appeals since the creation of statutory appeal rights in 1914. An understanding of these reforms, and the reasons behind them, is important because they demonstrate the commitment of the court to maintaining high-quality procedures for the determination of criminal appeals. The reforms also recognise that changes to appeal procedures are not by themselves sufficient to effect real change; the co-operation of other agencies involved in the appeal process is also required. For these reasons a brief explanation of the 2011 reforms is provided to enable a better understanding of the specific procedures discussed in Chapter 6 of this book.98 The problems [1.740] Prior to 2011 the Court of Appeal was experiencing an ever-increasing backlog of appeals against conviction and sentence.99 By January 2010 there were 679 appeals waiting to be heard and determined.100 In some cases a delay of two years existed.101 In response to this growing crisis, the Court of Appeal initially adopted conventional strategies, such as intensive listing of sentencing appeals, rigid adherence to timeframes, ex tempore judgments and trial judges sitting with appeal judges, but none of these made any real difference to the growing number of appeals awaiting hearing. At this time, all applications for leave to appeal conviction were part of the hearing of the appeal, with full oral submissions before a bench of

98 The bulk of sections [1.730] – [1.770] are based on a conference paper by Justice Pamela Tate: “Judicial Independence as Institutional Autonomy: Court-led Reforms” (Paper delivered at Supreme Court of Western Australia, Annual Conference, 29-30 August 2014). The authors are indebted to Her Honour for permission to quote from this paper. See also Victoria Legal Aid, Criminal Appeals Review (September 2014). Also see R J Redlich, “20th Anniversary of the Court of Appeal” (Paper at 20th Anniversary of the Victorian Court of Appeal, 20 August 2015). 99 Sentencing Advisory Council, “Sentence Appeals in Victoria”, Statistical Research Report (March 2012) p 1. 100 P Tate, “Judicial Independence as Institutional Autonomy: Court-led Reforms” (Paper delivered at Supreme Court of Western Australia, Annual Conference, 29-30 August 2014). According to her Honour (p 5): “The problem reached its apex with the 600+ backlog of 2010, which placed Victoria comparatively in the worst position of any Australian State or Territory.”. 101 P Tate, “Judicial Independence as Institutional Autonomy: Court-led Reforms” (Paper delivered at Supreme Court of Western Australia, Annual Conference, 29-30 August 2014) p 4. In R v Dang Quang Nguyen (2010) 242 CLR 491 at 506 [53]–[54] the High Court was critical of the delays in criminal appeals in Victoria.

[1.750]

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49

three judges.102 Applications for leave to appeal sentence were heard by a single judge, but this was usually a full hearing in open court rather than on the papers. Eventually, two judges could hear and determine sentence appeals, but only in respect to appeals from the County Court.103 Appeals against sentence from the Trial Division of the Supreme Court continued to be heard by a bench of three judges. Extensive judgments continued to be written even when no point of principle arose in the case and the judgments were published on AustLII. A more radical approach to the problems was needed. The English criminal appeals model [1.750] In 2009 Ashley J of the Victorian Court of Appeal visited the Royal Courts of Justice in London and spoke to numerous appellate judges and the Registrar of Criminal Appeals of England and Wales, Master Venne, who was responsible for criminal appeals. Ashley J noted that the English Court of Appeal dealt with approximately 7000 appeals each year. The registrar was a very experienced criminal law practitioner with the status of a Circuit Court judge. In the Criminal Appeals Office the lawyers were organised in teams with a team leader. It was the responsibility of the staff of the Criminal Appeals Office to obtain all the necessary paperwork once an appeal was received by the office. An individual staff member was responsible for each case from “cradle to grave”. Applications for leave were typically dealt with by a single judge and on the papers. Although an unsuccessful applicant could elect to renew a failed application, the judge could make a “Loss of Time” order if he or she thought the appeal was hopeless. Under a Loss of Time order, the applicant may be required to serve an additional 4–6 weeks in custody if the renewed application was unsuccessful. If the judge granted leave, then staff in the Criminal Appeals Office would prepare a “neutral summary” for the hearing of the appeal. Ashley J saw these procedures as having great potential for dealing with the problems confronting the Victorian Court of Appeal.

102 P Tate, “Judicial Independence as Institutional Autonomy: Court-led Reforms” (Paper delivered at Supreme Court of Western Australia, Annual Conference, 29-30 August 2014) p 6. 103 Supreme Court Act 1986 (Vic) s 11(1B) and r 2.03 of the Supreme Court (Criminal Procedure) Rules 2008 (Vic).

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[1.760]

The Victorian reforms [1.760] In May 2010 Master Venne visited Melbourne and spoke to key representatives of all the agencies involved in criminal appeals.104 The Court of Appeal organised a major meeting with all parties and a long process of consultation began. The Victorian Supreme Court subsequently passed a formal motion to implement a range of reforms and a Reference Group was established. In early 2011 key reforms were introduced through a combination of amendments to the Supreme Court Rules, a Practice Direction (No 2 of 2011), and the creation of the office of Judicial Registrar, including the Registrar of Criminal Appeals in the Court of Appeal.105 Tate J identifies five specific reforms: 1. The applicant is now required to state the true grounds of appeal when filing the application for leave to appeal within 28 days of the sentence. The applicant must also file a “Written Case”, which is in effect the submissions in support of the grounds of appeal. This was a significant change to the former system where very general “holding grounds” of appeal would be filed simply to get the case into the list. Now practitioners were required to be quite specific about the alleged defects in the trial or sentence, and make reference to specific parts of the transcript. The Written Case could not exceed 10 pages. One effect of this reform alone was to force practitioners at an early stage (post-trial) to focus on their specific complaint about how the trial was conducted. 2. It was now expected that trial counsel would be responsible for preparation of the appeal papers and to appear at any appeal hearing.106 This was in marked contrast to the traditional approach of solicitors engaging different counsel for the appeal (who would trawl though the transcript searching for the slightest erroneous direction or ruling). One effect of this reform was that it was now exceedingly difficult for the applicant to rely upon a ground which was not raised at the trial. A further consequence was that Victoria Legal Aid now added an additional component to the fee of trial counsel for advising on the appeal, drafting of appeals and appearance on appeals.107 3. There was now a much greater focus on the role of the Registry. Apart from the creation of the position of Registrar, four additional criminal 104 This was not the first time that a senior English legal authority had visited Melbourne and played a part in reform of the law. In 1951 Lord Evershed (the Master of the Rolls) gave an address at the University of Melbourne on the benefits of a permanent Court of Appeal. 105 For a general account, see B Doogue, “The Appeal of Swapping the Rolls” (2011) 85(7) Law Institute Journal 56. 106 For appeals in Commonwealth matters, there is no presumption that trial counsel will be involved in the appeal: see Commonwealth Office of DPP, Guidelines and Directions Manual, “Appeals” (February 2014) Pt 5. 107 According to Tate J, some 44% of trial counsel are now engaged for the appeal: P Tate, “Judicial Independence as Institutional Autonomy: Court-led Reforms” (Paper delivered at Supreme Court of Western Australia, Annual Conference, 29-30 August 2014) p 21.

[1.770]

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lawyers were appointed to the office as case managers. The office staff would now gather the necessary documentation (such as transcripts) and, if leave was granted, prepare the neutral summaries. For sentence appeals the summary would include a “Tabular Summary”. The tabular summary enabled the Court of Appeal judges to quickly ascertain the nature of the sentences (and other orders) imposed below. 4. Each criminal matter is now to be subject to a discrete application for leave to appeal – previously the appeal itself would be heard (apart from Crown Appeals which do not require leave). The previous practice of an application for leave to appeal conviction being heard by a bench of three judges has been abolished.108 Now all leave applications are presumed to be on the papers, unless an applicant requests an oral hearing.109 Reasons for the decision (whether to grant leave or not) are to be brief. Unsuccessful applicants can elect to have their application renewed by a bench of two judges.110 5. It was expected that a higher percentage of judgments would be delivered ex tempore, although that expectation has not occurred in practice. In order to reduce the number and complexity of written judgments, Practice Note No 8 of 2011 was introduced. The purpose of this Practice Note was to discourage unnecessary citation of previous decisions of the Court of Appeal. Under this Practice Note, on the determination of an appeal, if the Court of Appeal considers that the reasons for judgment do not contain any new point of principle, the catchwords on the cover sheet will include the words “No point of principle”. Decisions marked “no point of principle” cannot be cited in any subsequent appeal without leave of the bench hearing that appeal. Result of reforms [1.770] The Ashley-Venne reforms significantly improved the case processing efficiency of the Victorian Court of Appeal. By 30 June 2015 the number of cases pending appeal had reduced from 679 in January 2010 to 148. The median time between lodgement of an appeal and the final disposition of the appeal in 2014–2015 was six months.111 These are extraordinary results. This was the process which lay behind the specific rules and practices that are discussed in Chapter 6 of this book. 108 P Tate, “Judicial Independence as Institutional Autonomy: Court-led Reforms” (Paper delivered at Supreme Court of Western Australia, Annual Conference, 29-30 August 2014) p 23. 109 A significant percentage of applicants nevertheless request an oral hearing. Only 52% of applications for 2013–2014 were heard on the papers. 110 Approximately 88% of renewal hearings are by way of oral hearing: P Tate, “Judicial Independence as Institutional Autonomy: Court-led Reforms” (Paper delivered at Supreme Court of Western Australia, Annual Conference, 29-30 August 2014) p 25. 111 The delay between filing an application and the final resolution was described in the annual report of the Supreme Court for 2009–2010 as unacceptably long and sometimes in excess of two years. For 2013–2014 the median time for resolution of a conviction appeal had reduced to 10.8 months, and sentence appeals had reduced to 5.1 months for the same period. See also R J Redlich, “20th Anniversary of the Court of Appeal” (Paper at 20th Anniversary of the Victorian Court of Appeal, 20 August 2015) 9.

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[1.780]

Reform of double jeopardy: 2011 [1.780] In 2011 the prosecution was given the right to apply to the Court of Appeal for an order: (a) setting aside or removing the original acquittal as a bar to the accused being tried again for the offence of which he or she was acquitted; and (b) for the continuation of the second prosecution.112 Similar reforms had been introduced in other jurisdictions in Australia (and in the United Kingdom in 2005).113 The creation of this right is a departure from the fundamental principle of double jeopardy, but has been justified principally on the basis of the reliability of new forensic sciences, such as DNA evidence, although there is also a clear ideological shift also apparent in terms of a reconceptualisation of the notion of “justice”.

Categorising criminal appeals [1.790] The word “appeal” has several meanings and different types of appeal and review to a higher court are recognised in Victoria.114 It is suggested that at the broadest level, four basic types of appeal and review can be identified, as illustrated in the following diagram. [1.800]

Flowchart 1.1: Categorising appeals and reviews

(a) Statutory appeal rights. These are the most common type of appeals and include appeals against conviction and sentence, interlocutory appeals, appeals regarding mental impairment and unfitness to stand trial. (b) Judicial review. Only the Supreme Court has jurisdiction to hear and determine applications for judicial review. Judicial review is a supervisory jurisdiction as distinct from appellate jurisdiction. Prerogative writs are used to review decisions of legal bodies required to act judicially when exercising legal authority to determine questions that affect the rights of people and 112 CPA s 327O. 113 M McMahon, “Retrials of persons acquitted of indictable offences in England and Australia: Exceptions to the rule against double jeopardy” (2014) 38 Criminal Law Journal 1. 114 Where a party needs to obtain leave to appeal, the party is an “applicant” for leave to appeal, and if leave is granted, then the applicant becomes an “appellant”. However, CPA s 3 defines an appeal as including an application for leave to appeal, and for the purposes of this chapter, an appeal will include an application for leave to appeal. For a general overview of appeals in Victoria, see Law Reform Committee, De Novo Appeals to the County Court (Parliament of Victoria, 2006) Ch 2. For a general discussion of types of appeal, see D Mildren, The Appellate Jurisdiction of the Courts in Australia (Federation Press, Sydney, 2015) Ch 2.

[1.820]

1 History and Development of Appeals in Victoria

53

other legal entities. Prerogative writs are discretionary remedies and the focus of certiorari and prohibition is to determine whether or not the decision is within jurisdiction – that is, whether the decision-maker is acting within its authority. Mandamus compels a public official or body to perform its public duty. (c) Statutory rights to request an opinion from the Court of Appeal. These rights include the Case Stated procedure, where a trial judge can request an opinion from the Court of Appeal in respect to a specific question,115 and a DPP reservation and referral of a question of law to the Court of Appeal. The Attorney-General can also seek the opinion of the Court of Appeal pursuant to a petition of mercy – discussed further in Chapter 6 at [6.1710]. These three examples are not “appeals”, but rather the seeking of an opinion. (d) Applications and referral to the Court of Appeal. These procedures are rare and include an application by the DPP for the retrial of a person acquitted, and the referral of a case to the Court of Appeal by the Attorney-General pursuant to a petition for mercy. Each of these categories of appeal and review is now discussed in a little more detail. Statutory appeal rights [1.810] All statutory appeals involve some form of rehearing. The courts have recognised three basic types of statutory appeal.116 Whilst there is inevitably some overlap between all three, it is possible to identify key differences between each. Strict appeal [1.820] A strict appeal (appeal stricto sensu) is a determination by the appellate court as to whether the judgment of the court whose decision is being appealed contains a specified error. The judgment could be a conviction, a sentence, or a decision of the trial judge regarding the admissibility of evidence. No new evidence is in general permitted; the determination is made on the basis of the evidence presented in the court being appealed against; and the law at the time of the decision of the court below. The appellate court does not rehear the whole case but considers the submissions made by the parties in reference to the 115 The case stated procedure can be traced to the informal practice of trial judges “reserving difficult cases for informal discussion among their colleagues at Sergeant’s Inn. At last, official sanction was given to this procedure by the creation in 1848 of the Court for Crown Cases Reserved”: T F T Pluncknett, A Concise History of the Common Law (5th ed, Butterworths London, 1956) p 213. 116 In Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [57] the High Court recognised three different types of appeal, and in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [20] the High Court recognised four categories of appeal. For earlier categorisations, see Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297. See also N Williams, Civil Procedure Victoria (subscription service, LexisNexis) Order 64 Appeals and Applications to the Court of Appeal at [1 64.01.10].

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Criminal Appeals and Reviews in Victoria

[1.830]

transcript of the trial and associated documents. On a strict appeal the appeal court can substitute its own judgment for the judgment at first instance. According to the Court of Appeal of Western Australia: In Victoria and New South Wales, for example, it is generally assumed that criminal appeals are not by way of “rehearing”, but are, rather, appeals stricto sensu (albeit supplemented by a power, in appropriate circumstances, to receive fresh evidence).117

An appeal to the High Court (pursuant to s 73 of the Commonwealth of Australia Constitution Act (Cth) (the Constitution) from the decision of a State court of appeal is also an example of a strict appeal.118 The High Court has not been given a power to receive new or fresh evidence on a criminal appeal and in this way is a different type of appeal court to State courts of appeal, which are discussed further in Chapter 9 at [9.20]. Interlocutory appeal [1.830] As discussed in Chapter 5, an interlocutory appeal is a special type of appeal stricto sensu. An interlocutory appeal under the CPA can be commenced either before or during a criminal trial in the higher courts. The appeal is against an “interlocutory decision” which includes an order granting a permanent stay of the proceedings. The appeal is to the Victorian Court of Appeal which must first grant leave to appeal before hearing the appeal. The appeal is on a question of law. Rehearing [1.840] On a rehearing the Appeal Court rehears the case on the basis of the evidence that was presented at first instance. The Appeal Court can receive any additional evidence it thinks fit. The appeal is decided in light of the circumstances which exist at the time of the appeal.119 The Appeal Court will apply the law which operates at the time of the appeal, so any changes to the law since the case was decided at first instance can be taken into account. De novo appeal [1.850] A hearing de novo means the matter is heard “afresh” or “anew” in its entirety.120 In a general sense, the de novo appeal is a rehearing, but the appeal is in effect a complete second trial. All questions 117 Western Australia v Rayney (2013) 46 WAR 1; [2013] WASCA 219 at fn 30. 118 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at 203 (CLR) [11]–[12]. 119 Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21 at [56]; Quilter v Mapleson (1882) 9 QBD 672 at 676; Mickelberg v The Queen (1989) 167 CLR 259 at 347; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at 203 (CLR) [11]–[12]. See also N Williams, Civil Procedure Victoria (subscription service, LexisNexis) at [1 64.01.130]. 120 See, eg, Mr and Mrs X v Secretary to the Department of Human Services [2003] VSC 140 at [60]; DPP v Fricke [1993] 1 VR 367 at 374; and Builders Licensing Board v Sperway

[1.870]

1 History and Development of Appeals in Victoria

55

of fact and law are tried again. The appellate court is not concerned with the reasons of the court whose decision or order is being appealed. The appellant is not required to demonstrate any error on the part of the court below. The prosecution must present its case again. An example of a de novo appeal is an appeal from the Magistrates’ Court to the County Court. The appellant is not bound by her or his plea entered in the court below and can call new evidence or conduct a different line of defence: Everything which happened in the Magistrates’ court is to be disregarded on the hearing of the County Court appeal.121

DPP reference [1.860] After a trial (or an appeal to the County Court) resulting in an acquittal, the DPP can reserve a question of law for the opinion of the Court of Appeal, but the subsequent opinion or judgment of the Court of Appeal does not affect the outcome of the trial (that is, the acquittal).122 Clearly, this type of review is not an appeal against a specific decision or order, and the appellate court is not performing a supervisory function. The function is, in effect, for the Court of Appeal to provide certainty and clarity on the particular legal question posed.

Overview of victorian court structure [1.870] In Victoria a hierarchy of courts exists which creates the framework for criminal appeals. At the base of the hierarchy is the Children’s Court of Victoria (covered in Chapter 3), and the Magistrates’ Court of Victoria (covered in Chapter 4). In the middle hierarchy is the County Court of Victoria, which has both original and appellate jurisdiction. At the next level is the Supreme Court of Victoria, which consists of the “Trial Division” and the Court of Appeal.123 The Court of Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62 at [6] per Mason J. The first reference to a de novo appeal appears to be the Conventicle Act 1671 (UK), referred to by the High Court in Sweeney v Fitzhardinge (1906) 4 CLR 716. This Act referred to the right to a rehearing from a conviction by Justices of the Peace to the Court of Quarter Sessions sitting with a jury. The requirement of a jury was changed shortly thereafter so that the appeal de novo was heard by a judge alone. 121 Candolim Pty Ltd v Garrett [2005] VSC 270 at [30], followed in Quick v Creanor [2015] VSCA 273 at [19]. 122 CPA s 308. 123 The Supreme Court is established by the Constitution Act 1975 (Vic) s 75 and consists of the judges of the court, the Associate Judges of the court and the judicial registrars of the court: Constitution Act 1975 (Vic) s 75(2). The judges of the court consist of the Chief Justice, the President of the Court of Appeal, such number of judges of appeal as are appointed, and such number of other judges as are appointed: Constitution Act 1975 (Vic) s 75(3). The Supreme Court has unlimited jurisdiction: Constitution Act 1975 (Vic) s 85(1). The decision of an Associate Judge or a judge in the Trial Division can be appealed to the Court of Appeal: Supreme Court Act 1986 (Vic) s 10(ab).

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Criminal Appeals and Reviews in Victoria

[1.880]

Appeal is the highest court in the Victorian court hierarchy.124 An aggrieved party can appeal from the Court of Appeal to the High Court, assuming the High Court grants special leave to appeal. Given that the High Court rarely grants leave to appeal in criminal matters, the Court of Appeal in Victoria, and in other Australian jurisdictions, is in effect the final appellate court within the State. Although the court structure in Victoria is straightforward, there are a number of different types of appeals and reviews within that structure. The following flowchart sets out the main appeals and reviews in Victoria. Flowchart 1.2: Court structure [1.880]

124 The Court of Appeal and the Trial Division of the Supreme Court were created by the Constitution (Court of Appeal) Act 1994 (Vic), which inserted a new s 75A into the Constitution Act 1975 (Vic) and abolished the previous “Full Court” of the Supreme Court. For a general overview, see P Priest and P Holdenson, “The Court of Appeal Five Years On: Some Reflections” (2000) 115 (Summer) Victorian Bar News 16. The Court of Appeal consists of the Chief Justice, the President, and other judges of appeal. As at 2015 there were 12 full-time judges of appeal and a number of reserve judges. The work of the court is managed by the Registrar of the Court of Appeal and the Registrar of Criminal Appeals (Supreme Court Act 1986 (Vic) ss 113O and 113P). For 2012–2013 the Court of Appeal heard 494 applications for leave to appeal in criminal matters: Supreme Court of Victoria, Annual Report (2012–2013) p 19.

[1.880]

1 History and Development of Appeals in Victoria

57

58

Criminal Appeals and Reviews in Victoria

[1.890]

SCA = Supreme Court Act 1986; CPA = Criminal Procedure Act 2009; CYFA = Children, Youth and Families Act 1989; SCR = Supreme Court Rules 2015; CMIUTA = Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Appealing a discretionary decision: House v The King [1.890] Many decisions made by judges in criminal proceedings are discretionary in nature – for example, the decision to exclude evidence that is illegally or improperly obtained, or the sentence imposed in a particular case. Where the exercise of a judicial discretion is being reviewed, appellate courts apply the principles in House v The King where Starke J explained:125 [T]he sentence imposed upon an accused person for an offence is a matter peculiarly within the province of the judge who hears the charge: he has a discretion to exercise which is very wide, but it must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.126

The following dicta in the plurality judgment represent the test to be applied: [T]he judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 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 and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 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.127

125 House v The King (1936) 55 CLR 499; [1936] HCA 40. In House the appeal was against a sentence imposed by the Court of Bankruptcy. The appeal was dismissed. 126 House v The King (1936) 55 CLR 499 at 503. On an appeal, the appeal court may have arrived at a different sentence (either more severe or less severe) but this by itself is insufficient for the appeal to succeed. The appellant must show that in arriving at the particular sentence, the primary judge has made a significant legal error. 127 House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504–505 (CLR).

[1.900]

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Where the appellate court reviews a discretionary decision, it can substitute a different decision if it is satisfied that: (i) the decision-maker acted upon a wrong principle; or (ii) if irrelevant or extraneous matters have been taken into account; or (iii) if there has been a mistake as to relevant facts; or (iv) if there has been a failure to consider relevant matters. In a case where the appellate court cannot identify any of these specific errors or know how the decision was reached, it may infer that an error occurred if the decision or sentence is unreasonable or plainly unjust. Often, it is this last principle that is relied on, particularly in sentence appeals based on manifest excess or manifest inadequacy. In deciding whether to commence an appeal against a discretionary decision it is therefore important for the advocate to identify what specific error has been made to place the decision clearly outside the scope of the discretion. It is not enough that the Appeal Court might itself have arrived at a different decision.

Role of DPP in criminal appeals [1.900] Prior to the 1970s, the prosecution did not play an active role in criminal appeals.128 However, today the DPP plays a central role in all aspects of criminal appeals in Victoria.129 The DPP formally represents the Crown, and in a literal sense represents “the public interest” in criminal proceedings. A number of legislative provisions covered in subsequent chapters specifically require that the DPP should not commence an appeal unless the DPP thinks it is “in the public interest to do so”.130 Although the notion of “the public interest” appears somewhat vague, it is clearly in the interests of the community for an appellate court to identify serious errors of law made by a trial judge or a magistrate during the course of a criminal trial, or to identify the imposition of a clearly inadequate sentence. 128 The Office of DPP was not created in Victoria until 1982. Prior to that date, criminal prosecutions in the higher courts were conducted by the Criminal Law Branch of the Crown Solicitors Office within the Office of the Attorney-General: see C Corns, Public Prosecutions in Australia: Law Policy and Practice (Thomson Reuters, Sydney, 2014) at [2.130]ff. 129 The Public Prosecutions Act 1994 (Vic) does not specifically refer to appeal functions of the DPP but s 22(1) refers to the functions of the DPP as “to institute, prepare and conduct on behalf of the Crown, proceedings in the High Court, Supreme Court or County Court in respect of any indictable offence”. This would include the conduct of appeals arising out of such prosecutions. Section 22(b)(ii) also refers to the DPP taking over “any proceedings in respect of any summary or indictable offence”. Section 22(ba) refers to the function of the DPP to “institute, prepare and conduct on behalf of the Crown or be a party to” proceedings for judicial review. 130 For example, the Children, Youth and Families Act 2005 (Vic) s 427 and the CPA ss 257 and 287.

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Whilst the conventional view was that Crown appeals against sentence should be rare and exceptional, that view no longer applies, at least in respect to DPP appeals under the CPA.131 The public has a significant interest in ensuring that criminal justice is administered according to established principles and rules. It is not a matter of the prosecution seeking to be vindictive or seeking extra punishment for an offender, but rather the fundamental role of the prosecution in acting as an independent agency and in the interests of justice. Having said this, it is also in the public interest that, as a general principle, an offender should not be repeatedly sentenced for the same offence, for to do so could constitute an abuse of process. The DPP has particular duties to victims of crime.132 In exercising statutory functions and in making prosecutorial decisions, the DPP must take into account the interests of crime victims. The Office of Public Prosecutions will also keep victims advised of pending appeals and appeal outcomes. The DPP also files a Victim Impact Statement with the court. The DPP can play a role in criminal proceedings at all stages, including applying for an interlocutory appeal, requesting the trial judge “state a case”, appealing a question of law, appealing a sentence, applying for judicial review, requesting a guideline judgment, referring a question of law post-acquittal, and applying for a retrial of a person acquitted. The Victorian DPP has produced detailed policies on all these prosecution decisions to provide guidance for prosecutors, victims and witnesses.

Appeals in federal criminal matters [1.910] Apart from the Federal Court of Australia, which has a limited criminal jurisdiction, most criminal matters involving Commonwealth criminal laws are dealt with in the Victorian State courts since there are no designated federal criminal courts. Section 80 of the Commonwealth of Australia Constitution Act 1901 (Cth) (the Constitution) provides that the trial on indictment of any Commonwealth offence must be held in the State where the offence was committed. The Judiciary Act 1903 (Cth) s 68(2) provides that the courts of the States have jurisdiction to hear and determine federal criminal offences and s 68(1) provides that the rules of evidence and procedures of the State in which the case is being heard, shall apply to the federal matter, including “(d) the hearing and

131 DPP v O’Neill [2015] VSCA 325 at [103], referring to DPP v Karazisis (2010) 31 VR 634 at 661 [120]. 132 Public Prosecutions Act 1994 (Vic) s 24(c) and Victims of Crime Charter Act 2006 (Vic) s 9(f).

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determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith”.133 The Commonwealth Director of Public Prosecutions (“DPP”) is responsible for conducting the bulk of appeals in Commonwealth cases, although the Victorian DPP is empowered to conduct proceedings for a Commonwealth matter in some circumstances.134 Through these provisions, State procedural law, including laws governing appeals, will apply to Commonwealth cases. This also applies to the issue of costs.135 Victorian bail law will apply to persons charged with Commonwealth offences.136 This is not to say that that the application of Victorian State laws to federal offences has been unproblematic. Issues have arisen, for example, as to whether the Case Stated procedure is available for federal offences,137 and whether the abrogation of double jeopardy considerations in Crown appeals against sentence apply to federal cases.138 Difficult questions of law can also arise where a State Court of Appeal re-sentences an offender who has been convicted of federal drug offences.139 Appeals in federal matters can also arise within the original jurisdiction of the Federal Court. As discussed in Chapter 8, the Federal Court has jurisdiction to try a limited range of federal indictable offences. The parties to those proceedings can appeal to the Full Court of the Federal Court. In addition to these statutory appeal rights, the Federal Court also has jurisdiction to hear and determine judicial review in respect to decisions made by Commonwealth officers.140 Further, the Federal Court has jurisdiction to hear and determine appeals and judicial review in relation to extradition decisions. Although extradition is not a criminal 133 For a discussion of the scope of the Judiciary Act 1903 (Cth) s 68, see R v Gee (2003) 212 CLR 230; [2003] HCA 12. Since the respective laws of the States and Territories will govern appeals in federal matters, there can be inconsistencies between jurisdictions for federal offenders. 134 Public Prosecutions Act 1994 (Vic) s 22(1)(cc). See C Corns, Public Prosecutions in Australia: Law Policy and Practice (Thomson Reuters, Sydney, 2014) at [4.350]–[4.440]. 135 Kocalidis v Magistrates’ Court of Victoria (No 1) [2014] VSC 243. 136 See G Hampel, D Gurvich and S Braun, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) Ch 10. 137 R v Gee (2003) 212 CLR 230; [2003] HCA 12. 138 Bui v DPP (Cth) (2012) 244 CLR 638; [2012] HCA 1. See G Urbas, “Case Note on Bui v DPP (Cth): The High Court considers double jeopardy in sentencing appeals” (2014) 14 University of Notre Dame Australia Law Review (December) 187. 139 In The Queen v Pham (2015) 325 ALR 400; [2015] HCA 39 the High Court held that it was an error for the Victorian Court of Appeal to sentence a federal offender on the basis of current sentencing practices (for federal drug offences). Instead, the current sentencing practices throughout all jurisdictions for the particular federal offences should have been considered. 140 Judiciary Act 1903 (Cth) s 39B(1). However, when a decision to prosecute a person for a federal offence is made by a Commonwealth officer, and the prosecution is to be conducted in the court of a State or Territory, then the Federal Court does not have

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process, it is briefly included in Chapter 8 because it directly relates to criminal offences in that the person who is the subject of the extradition proceedings is being extradited to face a criminal trial or sentence in an overseas country.

Interventions [1.920] It will be seen in subsequent chapters that the Attorney-General (and other interested parties) can, in some circumstances, intervene in a criminal appeal and become a party to the proceedings. At the federal level, the Attorney-General and the Attorneys-General of the States and Territories can intervene in an appeal which involves the interpretation of the federal Constitution,141 and at the State level, the Victorian AttorneyGeneral can intervene in an appeal to the Supreme Court which involves the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic).142 This right of intervention illustrates the public interest considerations that can be involved in criminal appeals.

Some decisions which cannot be appealed [1.930] There are a number of decisions in the criminal process which are not, in general, susceptible to appeal. Prosecution decisions made by the DPP [1.940] The decision of the DPP to prosecute a person, or not to prosecute a person, is not subject to appeal or judicial review.143 The policy here is the separation of powers doctrine whereby the judiciary does not in general become involved in prosecution decision-making, which is part of the Executive government. If an aggrieved party regarded the prosecution as oppressive then he or she could make an application to the trial court for a stay of proceedings.144 For Commonwealth offences the Administrative Decisions (Judicial Review) Act

jurisdiction to entertain an application for judicial review of a decision of the Commonwealth officer. The Supreme Court of the State or Territory where the matter is being heard has jurisdiction to hear the judicial review: Judiciary Act 1903 (Cth) s 39B(1B). 141 Judiciary Act 1903 (Cth) s 78A. As discussed in Chapter 9 (at [9.70]) of this book, it is common for Attorneys-General to intervene in High Court appeals. 142 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 34. 143 Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 at [3]; Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 at [26] per Gaudron and Gummow JJ; and Jago v District Court (NSW) (1989) 168 CLR 23 at 39. 144 The Director of Public Prosecutions Act 1994 (Vic) s 47 states that the verdict of the jury or an order made by the trial judge cannot be appealed against on the basis that the filing of the indictment was dependent upon the making of a “special decision”, and that the procedures for such a decision were not followed.

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1977 (Cth) Sch 1 para (xa) provides that a prosecution decision made by a federal decision-maker regarding the prosecution of a person for a federal offence is not reviewable.145 Decisions made at a committal [1.950] The decision of a magistrate to commit the accused for trial cannot in general be appealed by the courts because such a decision is more a “ministerial” than a judicial decision and does no more than make a determination about the strength of the prosecution evidence.146 An order in the nature of certiorari is not available in respect to the decision of a magistrate to commit a person to stand trial.147

People prohibited from appealing criminal matters [1.960] In exceptional circumstances a person can be prevented from exercising normal appeal rights. The general theme in the case law is that a person who has abused the processes of the court can be prevented from availing themselves of the same court processes. Vexatious litigants [1.970] Under the Vexatious Proceedings Act 2014 (Vic) a person can be declared a vexatious litigant and be subject to various forms of restraint orders.148 The effect of being classified as a vexatious litigant is that the person must seek leave of the Supreme Court before he or she can commence legal proceedings, including an appeal or an application for a review. If leave is not granted then the person cannot appeal or seek review. The Vexatious Proceedings Act 2014 seeks to balance the right of an individual to access the courts, with the public interest in maintaining an efficient and effective justice system.

145 See also Administrative Decisions (Judicial Review) Act 1977 (Cth) s 9A, which provides that if a person is before a court, then no court can hear an application under the Act in respect to a “related criminal justice decision”. 146 Under s 272(1) of the CPA a party cannot appeal a question of law arising from a committal proceeding. Under the Children, Youth and Families Act 2005 (Vic) s 430P(1) an appeal on a question of law excludes committal proceedings. However, some form of judicial review of the proceedings under Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 56 could be possible. It appears certiorari would not be available (Potter v Tural (2000) 2 VR 612; [2000] VSCA 227) but mandamus and a declaration might be available: Sankey v Whitlam (1978) 21 ALR 457. For discussion, see R Fox, Criminal Procedure in Victoria (10th ed,Monash Law Book Co-operative, Clayton, 2010) at [10.7.1]. 147 Potter v Tural (2000) 2 VR 612; [2000] VSCA 227 at [3]. 148 The Vexatious Proceedings Act 2014 (Vic) commenced operation on 19 October 2014 and repealed s 21 of the Supreme Court Act 1986 (Vic), which previously dealt with vexatious litigants.

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Fugitives [1.980] A person who is a fugitive from the Victorian legal system and living in another country (or evading an arrest warrant) is not permitted to avail themselves of the system of appeals and reviews.149

Petition of mercy [1.990] Given that Victoria does not have a Criminal Cases Review Commission nor recognises second and subsequent appeals, the only recourse for an aggrieved person post-appeal is the petition for mercy procedure. This procedure is discussed in more detail in Chapter 6 ([6.1710]), but for the purposes of this background chapter, some basic features can be noted. The power to grant mercy to a person convicted and sentenced is a prerogative power exercised by the Governor of Victoria as the representative of the Queen. Mercy can be provided in terms of granting a pardon, remittal of sentence, remission of a fine, or reduction in sentence. The decision to exercise or not exercise the power is purely discretionary and not reviewable by the courts.150 The Governor is not required to provide reasons for his or her decision. The power is exercised by the Governor on the advice of the Premier. The Premier will ordinarily seek advice from the Victorian Attorney-General. As the principal legal office holder in Victoria, the Attorney-General has been given statutory powers to enlist the assistance of the Court of Appeal or the judges of the Trial Division of the Supreme Court. The Attorney-General “may” refer the whole case to the Court of Appeal or “may” refer any point of law arising in the case to the judges of the Trial Division of the Supreme Court for their opinion on the legal issues.151 These are purely discretionary powers of the Attorney-General and are not reviewable. There are no statutory guidelines for the way the Attorney-General exercises these discretionary powers. Under the CPAs 327(1)(a), if the application for mercy is referred to the Court of Appeal, the Court of Appeal must hear and determine the case as if it were a conventional appeal.

149 Slaveski v The Queen [2015] VSCA 264. 150 Von Einam v Griffith (1998) 72 SASR 110. At the federal level the prerogative power is reviewable: Martens v Commonwealth (2009) 174 FCR 114. See B Sangha R Moles, “Mercy or Rights? Post-Appeal Petitions in Australia” (2012) 14 Flinders Law Journal 293. 151 CPA s 327(1).

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Section 372(4) of the CPA provides that “[n]othing in this Chapter affects the prerogative of mercy”. Thus, whilst the Premier, and ultimately the Governor, may take into account any legal opinion provided by the judges of the Trial Division or a decision of the Court of Appeal, the exercise of the prerogative of mercy is purely discretionary. For federal matters, the application for the prerogative of mercy should be submitted to the Commonwealth Minister for Justice.

Chapter 2

The Charter of Human Rights and Responsibilities Act 2006 (Vic) Despite the encouragement of courts, and the support of individual judges, we continue to see reluctance on the part of practitioners to raise arguments under the Charter. It is hoped that this collection of papers will assist practitioners to develop their skills and expertise in Charter jurisprudence. Not only will building their awareness of the Charter assist practitioners to identify relevant issues and ask the right questions about a case, it will also assist them to come to court equipped with cogent submissions on the Charter’s operation and effect on statutory interpretation.1

[2.10] Introduction ........................................................................................................................... 68 [2.20] PART ONE: GENERAL FEATURES OF THE CHARTER ............................................. 71 [2.20] Commencement ..................................................................................................................... 71 [2.30] Purpose of the Charter ........................................................................................................ 71 [2.40] Application of the Charter .................................................................................................. 72 [2.50] Public authority ..................................................................................................................... 73 [2.60] Rights protected by the Charter ......................................................................................... 75 [2.70] Limitations of the rights ...................................................................................................... 76 [2.80] Breach of the Charter ........................................................................................................... 77 [2.100] The interpretive obligations of courts under the Charter ........................................... 79 [2.150] Declaration of inconsistent interpretation ...................................................................... 84 [2.160] Referral of a question of law to the Supreme Court .................................................... 85 [2.170] The right to appeal as a substantive human right ....................................................... 86 [2.180] PART 2: HOW THE CHARTER HAS BEEN ENGAGED IN CRIMINAL APPEALS AND REVIEWS ................................................................................................ 87 [2.180] Introduction ......................................................................................................................... 87 [2.190] The Charter and interlocutory appeals ........................................................................... 88 [2.200] Bail ......................................................................................................................................... 88 [2.210] Freedom of expression ....................................................................................................... 91 [2.220] Acting in a way incompatible with a human right: s 38(1) ........................................ 91 [2.230] Rights in criminal proceedings ........................................................................................ 93 [2.260] Right to privacy .................................................................................................................. 98 [2.270] Right to freedom of movement ...................................................................................... 100 [2.280] Right to a fair hearing ...................................................................................................... 102 [2.320] CONCLUSION .................................................................................................................. 107 1 Hon Chief Justice M Warren AC and Hon Justice P Tate, “Human Rights under the Charter: The Development of Human Rights Law in Victoria” (2014) 2 Judicial College of Victoria Online Journal 3.

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Introduction [2.10] With the introduction of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”) in 2006, Victoria became the first State in Australia to enact a specific human rights statute.2 The Charter is a highly significant statute that has elevated consideration of human rights by the courts, the Parliament and the Executive government. The Charter is an ordinary act of parliament which sets out the rights to be protected by law. The Charter is based on a parliamentary model of human rights, as distinct from a constitutionally entrenched model, as exists in the United States and Canada.3 In general, the overall concern of the Charter is to make governmental decision-making “compatible” with human rights. This can be achieved in the three fundamental sites of government: the Parliament, the courts and the Executive. More broadly the Charter seeks to develop and sustain a “culture” of human rights within all sectors of government so that taking human rights into account becomes the norm rather than an imposed obligation.4 The “responsibilities” referred to in the title of the Act are the respective responsibilities imposed on the Parliament, the courts and the Executive in order to make decision-making compatible with human rights. Specifically, parliament must consider human rights when developing new laws.5 The courts must interpret and apply all laws in a way that is compatible with human rights as far as possible, and public authorities must act in ways that are compatible with human rights.6 The Charter contains a number of mechanisms through which a “dialogue” between the three arms of government can arise, in order to give proper consideration to human rights. It is important to note that the Charter rights relating to criminal proceedings are not created ab initio by the Charter. Those rights have been recognised by international instruments and the common law for 2 The Australian Capital Territory has enacted the Human Rights Act 2004. For a detailed and useful account of the origins of the Charter, see Hon P Tate, “Statutory Interpretive Techniques under the Charter: Three Stages of the Charter – Has the Original Conception and Early Technique Survived the Twists of the High Court’s Reasoning in Momcilovic?” (2014) 2 Judicial College of Victoria Online Journal 43. 3 The Victorian parliament can “override” the Charter by expressly declaring that an Act is incompatible with one or more rights in the Charter (Charter s 31). 4 The Equal Opportunity and Human Rights Commission (“EOHRC”) is the primary regulatory body responsible for promoting the Charter. The EOHRC reports annually to the Attorney-General on the operation of the Charter. 5 All new Bills must be accompanied by a Statement of Compatibility and all new Regulations must have a Human Rights Certificate. The Scrutiny of Acts and Regulations Committee then considers whether any new laws are compatible with human rights and reports to parliament (Charter s 30). 6 The Charter does not apply to federal government agencies operating in Victoria.

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many years, or in other statutes.7 The effect of the Charter is to consolidate those rights into the one source and to provide mechanisms by which they can be further recognised, protected and taken into account. For this reason, the common law relating to each of those rights, continues to apply, and the traditional rules concerning statutory interpretation also continue to apply, and indeed must be applied.8 In many ways the Charter attempts to balance some of the most important values in contemporary Australian society – for example, the right to freedom of expression, the right to freedom of movement, and the right to be tried without undue delay. In some circumstances, the rights set out in the Charter can conflict with each other. For example, the right to freedom of expression (s 15) could conflict with the right to privacy and reputation (s 13). In the criminal context, the Charter attempts to strike a reasonable balance between the rights and interests of persons accused and convicted of criminal offences with the rights and interests of the broader community in having effective law enforcement and an effective criminal justice system. These are the same general competing considerations that apply to a system of criminal appeals and reviews. For the courts, the key ways in which the Charter attempts to achieve a reasonable balance is through the operation of ss 7(2) and 32(1) of the Charter. These two sections, and the relationship between the two, have been the subject of considerable discussion in the relevant Charter cases. Considerable uncertainty surrounds the operation of both these sections. Section 45(1) of the Charter requires that “a review of the Charter be made of the 5th to 8th years of operation of this Charter” and that a report 7 Most of the rights in the Charter are based on the rights set out in the International Covenant on Civil and Political Rights. In the criminal context, examples of common law recognition of rights include: right to a fair trial (Dietrich v The Queen (1992) 177 CLR 292 at 362); right to privacy (Semayne v Gresham (1604) 77 ER 194 at 195; Entick v Carrington (1765) 95 ER 807 at 817); right to liberty (Michaels v The Queen (1995) 184 CLR 117 at [129]); right to know reason for arrest (Adams v Kennedy (2000) 49 NSWLR 78); presumption of innocence (Woolmington v DPP [1935] AC 462 at 481); right to a lawyer (Dietrich v The Queen (1992) 177 CLR 292); right against self-incrimination (Pyneboard v Trade Practices Commission (1983) 152 CLR 328 at 340); and limitations on retrospectivity (Polyukovich v Commonwealth (1991) 172 CLR 501). 8 In Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 six of the High Court justices held that s 36(1) of the Charter does not permit a court to depart from conventional approaches to statutory construction, and does not permit the type of “remedial” approach adopted by the courts in the United Kingdom under s 3 of the Human Rights Act 1988 (as typified by cases such as Ghaidan v Godin-Mendoza [2004] 2 AC 557). See at 38 [20], 44-45 [38]-40], 50 [50]-[51], 54-55 [61]-[62] per French CJ; at 83 [146], 87-90 [148]–[160] per Gummow J; at 123 [280] per Hayne J, 210-211 [539]-[546], 217 [565], 220 [547] per Crennan and Keifel JJ and at 250 [684]-[685] per Bell J. The remedial approach, permitted in the United Kingdom, is encapsulated by the following dicta: “By enacting section 3, Parliament has been held to direct the courts to interpret legislation in a way which is compatible with Convention rights, even where such interpretation involves departing from the ‘unambiguous meaning the legislation would otherwise bear’, or the ‘legislative intention of Parliament’” (from Ahmed v HM Treasury [2010] 2 AC 534).

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of the review be tabled in parliament before 1 October 2015. In 2015 the Victorian Attorney-General tabled a report of a review of the Charter.9 The 2015 report of the review contained 52 recommendations, 45 of which have been accepted by the government. A number of these recommendations are referred to in this Chapter. As a result of this report, significant amendments to the Charter can be expected in the near future. In this chapter this report is referred to as the “2015 Review.” The Charter is relevant to criminal appeals and reviews for several reasons. First, in many appeals and reviews, relevant provisions of the Charter have been engaged by the parties to further a ground of appeal, and appeal courts have referred to the Charter in the determination of the appeal or review. In particular, s 32(1) of the Charter provides that “all statutory provisions must be interpreted in a way that is compatible with human rights”.10 This obligation on the courts has far-reaching implications for criminal appeals and reviews. As the introductory quote by Warren CJ and Tate JA indicates, it is important for practitioners to have an understanding of the Charter, and how its provisions can be utilised on a criminal appeal or review. Secondly, on an appeal to the Supreme Court, including the Court of Appeal, under s 36(1)(c) of the Charter, the court can make a “declaration” that a particular statutory provision cannot be interpreted consistently with a human right. Whilst such a declaration does not affect the validity of a statutory provision, it can put the Executive government “on notice” that remedial action may be required. This is a novel appellate function, quite distinct from the ordinary role of determining the merits in a particular case. Thirdly, under s 33 of the Charter, if, in a proceeding before a court, a question of law arises that relates to the application of the Charter (or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter), that question of law can be referred to the Supreme Court (if the statutory requirements are satisfied). Whilst not 9 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015). The 2015 report is available from the Department of Justice and Regulation at http://www.justice.vic.gov.au. For terms of reference see Summary Report 2015 p iv. The report provides a detailed analysis of all the key provisions in the Charter. In 2011 the Scrutiny of Acts and Regulations Committee (“SARC”) provided the first report of a review of the first four years of operation of the Charter pursuant to s 44(1) of the Charter. The 2011 report and the response of the government is available on the SARC website: http://www.parliament.vic.gov.au’sarc/ article/1446. However, no amendments to the Charter were made following this first report in 2011. 10 A “statutory provision” includes the Charter itself (Charters 3). Section 1(2)(b) of the Charter also states that the main purpose of the Charter is to protect and promote human rights by “ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights.” This obligation is however constrained by s 7(2) of the Charter which permits limits to be placed on human rights.

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an appeal in the conventional sense, this type of referral does engage the appellate function of the Supreme Court, including the Court of Appeal, and thus practitioners need to have some understanding of this process. Finally, the Charter is also relevant to appeals and reviews because s 25(4) specifically recognises, as a substantive human right, the right of a person convicted of a criminal offence to have the conviction and sentence “reviewed” by a higher court. The meaning and scope of s 25(4) of the Charter therefore require some exploration in order to determine if Victorian law complies with s 25(4). The purpose of this chapter is to provide an overview of the main features and effect of the Charter (Part One of the chapter), and to provide some examples of how the Charter has been engaged in criminal appeals and reviews (Part Two of the chapter). The chapter does not intend to discuss each and every feature (or section) of the Charter; rather, the fundamental features, particularly those most relevant to criminal proceedings will be examined. Further sources For a detailed account of the Charter, an excellent resource is the Charter of Human Rights Bench Book published by the Judicial College of Victoria: see http://www.judicialcollege.vic.edu.au The Judicial College of Victoria, in conjunction with the Victorian Supreme Court has also published Victorian Human Rights Charter Case Collection (September 2015): see http://www.judicialcollege.vic.edu.au/publications/charter-casecollection.11

PART ONE: GENERAL FEATURES OF THE CHARTER Commencement [2.20] Sections 1 – 31 and 40 – 49 of the Charter commenced operation on 1 January 2007. The remaining provisions (relating to the interpretation of laws and obligations of public authorities) came into effect on 1 January 2008.12 This allowed government departments affected by the Charter time to introduce measures in order to comply with the Charter.

Purpose of the Charter [2.30] The Charter attempts to protect the basic rights and freedoms nominated in the Charter through its application to Parliament, courts and tribunals, and public authorities. The Charter introduces obligations upon these bodies to act in a way that is compatible with the Charter. 11 See also “Human Rights under the Charter: The Development of Human Rights Law in Victoria” (2014) 2 Judicial College of Victoria Online Journal (Special edition). 12 For an example of a case where the court held the Charter does not apply to the proceedings because of the commencement date of the Charter, see R v Williams (2007) 16 VR 168; [2007] VSC 2 at [48].

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Section 1(2) of the Charter provides: The main purpose of the Charter is to protect and promote human rights by – (a) setting out the human rights that Parliament specifically seeks to protect and promote; and (b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and (c) imposing an obligation on all public authorities to act in a way that is compatible with human rights; and (d) requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; and (e) conferring jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and requiring the relevant Minister to respond to that declaration.

Application of the Charter [2.40] Under s 6(1) of the Charter, only human beings can possess human rights. Under s 1(2) of the Charter, specific obligations have been imposed on Parliament,13 courts and tribunals,14 and public authorities.15 However, the Charter does not take away from or limit any other function conferred by the Charter on Parliament, courts and tribunals and public authorities.16 The Charter binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.17 In short, the Charter has far-reaching application for all governmental entities in Victoria. However, no court in Victoria has a power under the Charter to declare a legislative provision as invalid, or to strike down a legislative provision as incompatible with the Charter. While the policy behind the Charter is about encouraging a human rights “dialogue” between the major organs of government, the objective of the Charter is not to encourage rights-based litigation. The 2015 Review has recommended extending the remedies available under the Charter.

13 Under s 6(2) of the Charter, the Charter applies to the Parliament to the extent that the Parliament has functions under Divs 1 and 2 of Pt 3 of the Charter. 14 Under s 6(2) of the Charter, the Charter applies to courts and tribunals to the extent that they have functions under Pt 2 and Div 3 of Pt 3 of the Charter. 15 Under s 6(2) of the Charter, the Charter applies to the public authorities to the extent that they have functions under Div 4 of Pt 3 of the Charter. 16 Section 6(3) of the Charter. 17 Section 6(4) of the Charter.

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Public authority [2.50] Given that the Charter applies to all public authorities (and pursuant to s 38(1) it is unlawful for a public authority to act in a way that is incompatible with the Charter), the definition of “public authority” is important.18 Section 4(1) of the Charter sets out a broad range of persons and entities who are public authorities for the purposes of the Charter. These are: (a) a public official within the meaning of the Public Administration Act 2004;19 (b) an entity (established by statute) that has functions of a public nature;20 (c) an entity whose functions are or include functions of a public nature when it is exercising those functions on behalf of the State or a public authority; (d) Victoria Police;21 (e) a Council,22 councillors and members of Council staff; (f) Ministers of government; (g) members of parliamentary Committees;23 and (h) entities declared by the regulations to be a public authority for the purposes of this Charter.24 18 For a detailed discussion of the meaning of public authority, see Judicial College of Victoria, Charter of Human Rights Bench Book at [3.1.1]. See also Hon Justice E Kyrou, “Obligations of Public Authorities Under s 38 of the Victorian Charter of Human Rights and Responsibilities” (2014) 2 Judicial College of Victoria Online Journal 77. 19 The note below s 4(1) of the Charter states: “A public official under the Public Administration Act 2004 includes employees of the public service, including the Head of a government department or an Administrative Office (such as the Secretary to the Department of Justice or the Chairman of the Environment Protection Authority) and the Chief Executive Officer of the State Services Authority. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices.” 20 For the factors to be taken into account in determining if a function is of a public nature, see s 4(2) of the Charter. An entity could thus be a public authority (for the purposes of the Charter) when performing a particular function, but not be a public authority when performing a different function. 21 Section 3 of the Charter defines “Victoria Police” to have the same meaning as the force has in the Police Regulation Act 1958. The note below this definition in the printed legislation states that “in the Police Regulation Act 1958 the force means officers and other members of the police force”. 22 Within the meaning of the Local Government Act 1989. 23 When the Committee is acting in an administrative capacity. 24 The Office of Public Prosecutions (“OPP”), including staff, the Solicitor for Public Prosecutions, Crown Prosecutors and the Director of Public Prosecutions fall within the definition of a public authority.

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Section 4(1)(i) of the Charter sets out entities excluded from the definition of public authority. These are the Parliament, courts (when acting in their judicial function), and any entity declared by the Charter regulations not to be a public authority.25 Note that a court or a tribunal can be a public authority for the purposes of the Charter when acting in an “administrative capacity” (as distinct from a judicial capacity).26 Issuing warrants is an example of an administrative role of a court or tribunal, whereas decisions made by a judge in the course of a hearing are part of the court’s judicial functions. Deciding an application for an adjournment is also part of judicial functions.27 The 2015 review has recommended that the Charter be amended to provide a non-exhaustive list of functions of a public nature in s 4(1)(c) to provide greater clarity.28 Under s 38 of the Charter it is unlawful for a public authority to “act in a way that is incompatible with a human right” or, in making a decision, “to fail to give proper consideration to a relevant human right”. Section 38 is thus a key section of the Charter because it compels all public authorities to give proper consideration to human rights.29

25 Regulation 5 of the Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013 excludes the Adult Parole Board, the Youth Residential Board and the Youth Parole Board (until 23 October 2023). For an explanation as to why these bodies are excluded from the operation of the Charter see Victorian Adult Parole Board, Parole Manual: Adult Parole Board (5th ed, 2015) note 19. 26 Section 4(1)(j) of the Charter. 27 R v Williams (2007) 16 VR 168; [2007] VSC 2 at [50]. The 2015 Review has recommended removing the second sentence in the note to s 4(1)(j) of the Charter because listing cases may sometimes involve acting in a judicial, rather than administrative capacity: Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) Recommendation 19, p 79 – supported by the government. 28 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) Recommendation 12 – supported in principle by the government. The 2015 Review has also recommended that a definition of “compatibility” and “incompatibility” be included in the Charter to make it clear that an act, decision, or statutory provision is compatible with human rights “when it places no limit on a human right, or it limits human rights in a way that is reasonable and demonstrably justified in terms of s 7(2)”. (Recommendation 29 — supported by the government). 29 In Castles v Secretary of the Department of Justice (2010) 28 VR 141, 184 [185]-[186] Emerton J stated “The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government … There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts …it will be sufficient in most circumstances that there is some evidence that shows the decisionmaker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person …”.

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Rights protected by the Charter [2.60] Section 6(1) of the Charter recognises that all persons have the human rights set out in Pt 2 of the Charter.30 Part 2 recognises and protects many human rights.31 Some rights have general application whilst other rights have specific application to criminal proceedings, and others, such as the right to a fair hearing, consist of a number of related rights. The rights protected in Pt 2 of the Charter are (paraphrased): • the right to recognition as a person before the law: s 8(1); • the right to enjoy human rights without discrimination: s 8(2); • the right to equality before the law and equal protection of the law: s 8(3); • the right to life: s 9; • the right to protection from torture, or treatment in a cruel, inhuman or degrading way, and the right not to be subjected to medical or scientific experimentation or treatment without consent: s 10; • the right to freedom from forced work: s 11; • the right to freedom of movement: s 12; • the right to privacy and reputation: s 13; • the right to freedom of thought, conscience, religion and belief: s 14; • the right to freedom of expression: s 15; • the right to peaceful assembly and freedom of association: s 16; • the right of families and children to protection by society and the State: s 17; • the right to take part in public life: s 18; • the right of a person to enjoy their cultural, religious, racial or linguistic background: s 19; • the right not to be deprived of one’s property: s 20; • the right to liberty and security of the person: s 21;32 • the right to humane treatment when deprived of liberty: s 22; • for children in the criminal process, the right to be segregated from detained adults, brought to trial as quickly as possible, and when convicted, is to be treated in an age-appropriate manner: s 23; The 2015 Review has recommended that the Charter be amended to make it clear that decisions of public authorities must be substantively compatible with human rights: Recommendation 17, Final Report, p 71 – supported by the government. 30 The 2015 Review noted that s 7(2) is inappropriately located in Part 2 and recommended excluding s 7(2) from Part 2, Final Report (Recommendation 30) – supported by the government. 31 The Charter does not include all of the rights in the ICCPR. Some of the rights not included are within federal areas of responsibility or were considered to be unclear in their application to Victorian law. 32 The right to liberty and security of the person in s 21 of the Charter consists of a number of sub-rights set out in s 21(1) – (8).

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[2.70]

• the right to a fair hearing: s 24; • rights in criminal proceedings: s 25;33 • the right not to be tried or punished more than once: s 26; and • the right not to be subjected to retrospective criminal laws: s 27. The rights set out in Pt 2 of the Charter are not the only human rights that exist in Victoria; rather, they are those rights which Parliament has considered to be the most appropriate for inclusion in the Charter. Other human rights can exist at common law or in other legislation.34

Limitations of the rights [2.70] The human rights protected by the Charter are subject to limitations. Some of the limitations are expressly contained in the Charter.35 Other limitations are more general. It is not surprising that the Charter recognises legitimate limitations to the rights set out in the Charter. Very few human rights are “absolute” in the sense that there can never be any form of exception or limitation. The Charter attempts to strike a reasonable balance between protection of human rights, on the one hand, and competing social policy or competing social considerations on the other. An example is that whilst the Charter recognises the right to “liberty and security” (s 21(1)), the law also recognises that there are many situations when that right must legitimately yield to a competing need, such as a lawful arrest. The general limitations are governed by s 7 of the Charter. The key section here is s 7(2), which states: A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including – (a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Section 7(2) thus clearly recognises that a human right (listed in the Charter) can be restricted, but only where that restriction or limitation is 33 The rights in criminal proceedings also consist of a number of separate rights which are set out in s 25(1) – (4) of the Charter. 34 Section 5 of the Charter confirms that a right or freedom not included in the Charter, but which is recognised under any other law, must not be taken to be abrogated or limited because the right does not appear in the Charter. 35 See, eg, s 24(2) of the Charter which allows for the exclusion of the media and members of the public by a court or tribunal, if permitted to do so by a law other than the Charter. This is a “reasonable” limit on the right to a “public” hearing in s 24(1).

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“under law” and can be “demonstrably justified in a free and democratic society”.36 A simple example could be that the right to freedom of expression (s 15) could be restricted in order to protect private or public property: s 20.37 Section 7(2) is thus a very important section of the Charter as it is a key mechanism by which a court can determine whether a particular statutory provision does or does not reasonably limit one of the human rights listed in the Charter. The requirement that the limitation must be “reasonable” and “demonstrably justified” has been described as the “proportionality principle”.38 This means that the limitation imposed on the right must be proportionate to the need for the limitation. If a Court determines that a particular law does limit one of the human rights set out in the Charter, but does not do so “reasonably”, then the court can make a declaration under s 36(2) of the Charter that the statutory provision cannot be interpreted consistently with a human right. Section 7(2) of the Charter thus allows for accountability in the drafting, implementation and interpretation of laws, to ensure that human rights are properly recognised and protected.

Breach of the Charter [2.80] A breach of the Charter does not give rise to any cause of action on behalf of the aggrieved person Section 39(3) of the Charter states: “A person is not entitled to be awarded any damages because of a breach of this Charter.” However, s 39(1) states: If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

Thus, if a person commenced a judicial review of a particular decision of a public authority on the basis that the decision was unlawful (on the basis of a non-Charter ground), the person could utilise the relevant provisions of the Charter to “bolster” their claim of unlawfulness (for example, engaging s 38(1) of the Charter which makes it unlawful for a public authority to act in a way that is incompatible with a human right). 36 The requirement that the limitation be “under law” is known as the legality requirement: see Re Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 at [107]. This covers the common law as well as statute law. The requirement that the limitation must be “reasonable and justified” is known as the “proportionality test”: see Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [22] per French CJ. 37 See, eg, Magee v Delaney [2012] VSC 407. 38 See B Horrigan, “Proportionality in Comparative Analysis” (2014) 2 Judicial College of Victoria Online Journal 103; and PJB v Melbourne Health [2011] VSC 327 at [308]; Re Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 at [158]–[160].

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The 2015 Review and ss 38 and 39 [2.90] The 2015 Review uses the phrase to “piggy back” the Charter claim on an existing legal claim.39 However, it is unclear whether a person could succeed with judicial review where the sole ground of the review is that the public authority has breached one of the rights in the Charter. Following the Court of Appeal judgment in Bare v IBAC, a decision that is unlawful under s 38 of the Charter is unlikely to be invalid nor affected by jurisdictional error.40 The 2015 Review states “However, unlawfulness under section 38 of the Charter is an error within jurisdiction and it is unclear whether review of a decision can be sought on this ground alone”.41 The 2015 Review recommended the Charter be amended to make it clear that judicial review is available for a breach of the Charter.42 The 2015 Review found that s 39 is unsatisfactory and that the lack of real consequences for a breach of the Charter is a major flaw in the Charter: Since the Charter commenced, section 39 has been criticised as an “irremediable” remedies provision that is “drafted in terms that are convoluted and extraordinarily difficult to follow”. The uncertainty surrounding this section has centred on whether a person seeking a remedy for a Charter breach must establish an entitlement to a remedy on other grounds, whether s 39(1) is no more than a standing requirement, or whether a remedy is available at some point between these two extremes.43 (footnotes omitted)

The 2015 Review found the existing case law on s 39 very difficult to understand and apply,44 and that the uncertainties regarding the meaning of s 39 diminished the Charter. The 2015 Review recommended that the Charter be amended so that a person who claims a public authority has acted incompatibly with their human rights (in breach of s 38) can either apply to the Victorian Civil and Administrative Tribunal for a remedy or rely on the Charter in any legal proceedings.45 The 2015 Review also recommended that if a Tribunal finds a public authority has acted 39 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) p 119. 40 Bare v IBAC [2015] VSCA 197 at [145] per Warren CJ, [380] per Tate JA and [600] Santamaria J. 41 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) p 121. 42 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) Recommendation 27, p 133 – under further consideration by the government. 43 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) p 119. 44 The Report referred to Director of Housing v Sudi (2011) 33 VR 559: Final Report 2015, p 121. 45 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) Recommendation 27(a), p 133 – under further consideration by the government.

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incompatibly with a Charter right, it should have a power to grant any relief or remedy that it considers appropriate, including an award of damages, and that the Charter be amended to clarify that a person can seek judicial review of a public authority’s decision on the ground of Charter unlawfulness alone.46

The interpretive obligations of courts under the Charter [2.100]

Section 32 of the Charter states:

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. (2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

Section 32(1) is one of the most important provisions in the Charter, not only for courts at first instance, but also for appellate courts. However, the meaning of s 32(1) has also proved to be one of the most problematic issues confronted by Courts of Appeal. According to Tate JA: The most significant Charter mechanism to be tested in the courts has been the interpretive obligation under s 32(1); that is, the obligation to interpret all statutory provisions in a way that is compatible with human rights. More exactly it is the obligation to interpret all statutory provisions in a way that is compatible with human rights, so far as it is possible to do so consistently with their purpose.47

The effect of s 32(1) is to create an obligation on the courts, when applying or interpreting any statute, to interpret the relevant statutory provision in a manner that is compatible with human rights, subject to the opening words in the section, “[s]o far as it is possible to do so consistently with their purpose”. This does not mean that conventional rules of statutory interpretation are to be abandoned in favour of a strictly “rights approach”. To the contrary, conventional rules and principles of statutory interpretation continue to apply and co-exist along with s 32(1). There is clear and strong authority for the proposition that s 32(1) does not alter existing (ordinary) approaches to statutory interpretation.48 Indeed, it would be impermissible for a court, when engaged in the interpretive process under s 32(1), to depart from conventional approaches to statutory construction. 46 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) Recommendation 27(c), p 133 – under further consideration by the government. 47 Justice P Tate, “Statutory Interpretive Techniques under the Charter: Three Stages of the Charter – Has the Original Conception and Early Technique Survived the Reasoning of the High Court’s Reasoning in Momcilovic?” (2014) 2 Judicial College of Victoria OnLine Journal 43 (footnotes omitted). See also, Hon Justice P Tate, “Statutory Interpretive Techniques under the Charter” (Paper, Melbourne Conference, Human Rights under the Charter: The Development of Human Rights Law in Victoria (8 August 2014). 48 See Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [20] per French CJ; Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [20].

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[2.110]

One of the most difficult issues that has arisen under the Charter is the relationship between ss 32(1) and 7(2). The specific issue is whether a court is required to take into account s 7(2) when engaging in the interpretive process in s 32(1), and if so, at what stage. On one view, s 32(1) requires a court, when interpreting any given statutory provision, to look at the provision in its “pure” form without any consideration of whether s 7(2) can limit that statutory provision.49 The competing view is that s 32(1) requires the court to look at the statutory provision and determine whether it is compatible with a human right, after that right had been reasonably limited (if at all) in accordance with s 7(2) of the Charter. The leading case on this issue is the High Court decision in Momcilovic v The Queen,50 an appeal from the judgment of the Victorian Court of Appeal.51 As discussed below, despite the High Court judgment in Momcilovic, considerable uncertainty remains as to the precise relationship between ss 7(2) and 32(1) of the Charter because the presiding judges were split on this issue. Given that the decision in Momcilovic is important to the application of the Charter, the case is discussed in a little more detail below. Momcilovic v The Queen [2.110] In brief, in Momcilovic v The Queen52 Momcilovic was charged with trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“DPCSA”). Section 5 of the DPCSA defines “possession” as follows: Without restricting the meaning of the word “possession”, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

As occupier of the premises where the drugs were found, Momcilovic was thus deemed to be in possession of the drugs and had the legal burden of satisfying the court (on the civil standard) that she was not in possession. Momcilovic was convicted of trafficking in the drug.53 49 The term “pure” here is borrowed from Hon Justice E Kyrou, “Obligations of Public Authorities Under s 38 of the Victorian Charter of Human Rights and Responsibilities” (2014) 2 Judicial College of Victoria Online Journal 77 at 81. 50 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34. 51 R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50. The court consisted of President Maxwell, Ashley and Neave JJA. 52 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34. 53 The Crown also relied on s 73(2) of the DPCSA, which states: “Where a person has in his possession … a drug of dependence in a quantity that is not less than the traffickable quantity … the possession of that drug is prima facie evidence of trafficking by that person in a drug of dependence.”

[2.120]

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Momcilovic v The Queen: The decision of the Victorian Court of Appeal [2.120] On an appeal against conviction to the Court of Appeal, Momcilovic relied on a number of grounds, with ground 1 consisting of two arguments. The first argument was that, independent of the Charter, s 5 of the DPCSA should not be interpreted to create a legal onus but, rather, only an evidentiary onus.54 The Court of Appeal swiftly rejected this ground of appeal holding that the construction of s 5 of the DPCSA was straightforward under normal principles of statutory interpretation.55 The second argument (in the first ground of appeal) was that the introduction of the Charter had changed the way statutory provisions should be interpreted by the courts. It was argued by the appellant that s 25 of the Charter recognised the presumption of innocence and therefore s 5 of the DPCSA was not compatible with the right recognised under s 25, having regard to the interpretive obligation on courts under s 32(1) of the Charter.56 The Court of Appeal stated: These submissions raise two separate issues about the operation of the Charter. The first is whether s 32(1) was intended to create a “special” rule of interpretation, that is, a rule which authorised (and hence required) the court, where necessary, to depart from the meaning which would be arrived at by the application of “ordinary” principles of interpretation. … The second issue relates to the point in the analysis at which the question of justification under s 7(2) must be considered.57

The court answered the first question thus: (1) Section 32(1) does not create a “special” rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question.58

In regard to the second question, the court responded: (2) Accordingly, when it is contended that a statutory provision infringes a Charter right, the correct methodology is as follows: Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic). Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter. Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified. 54 R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 at [16]. 55 R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 at [19]. 56 R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 at [23]. 57 R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 at [33] and [34]. 58 R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 at [35], [74]-[77], [92]-[104].

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[2.130]

(3) On the view we take of s 32(1), it is not “possible” to interpret s 5 of the DPCS Act, consistent with its purpose, otherwise than as it has been traditionally interpreted – that is, as imposing a reverse legal onus of proof.59

The Victorian Court of Appeal unanimously decided that when engaging in the interpretative process set out in s 32(1), s 7(2) is not to be taken into account. It is only when interpreting a statutory provision that s 7(2) should be used to determine whether that limitation is justified.60 The court held that s 32(1) does not displace the ordinary rules of statutory construction, acting as but one factor among the many factors to be taken into account, as identified by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.61 Given the wording in s 5 of the DPCSA, it was not open to the court (under the Charter) to reduce the legal onus to an evidentiary onus. The court dismissed the appeal against conviction (but allowed the appeal against sentence). However, the court did make a declaration of inconsistency pursuant to s 36 of the Charter.62 Momcilovic: The High Court decision [2.130] On appeal to the High Court, the appeal was upheld, the conviction quashed and a new trial ordered.63 A majority of the court held that the prosecution ought not to have relied upon s 5 of the DPCSA because the appellant had not been charged with possession of the drugs; rather the charge had been trafficking and, as a result, the trial had miscarried.64 Section 5 did not apply to the trafficking offence and hence there was no incompatibility or displacement of the presumption of innocence in s 25 of the Charter. In arriving at this decision, the court considered the operation of the Charter, and in particular the scope of s 32(1) and the relationship between ss 32(1) and 7(2) of the Charter. A majority of the court held that s 32(1) does not permit a departure from conventional rules of statutory 59 R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 at [35], [105]-[110]. 60 R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 at [35] and [155]–[157]. 61 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 62 R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 at [155].The text of the declaration is set out at [157]. The High Court subsequently quashed the declaration on the basis that s 36 was invalid, at [140] per Gummow J, [280] per Hayne J and [371] per Heydon JJ, and on the basis that it is undesirable to make a declaration in criminal proceedings because the declaration undermines the conviction (and because s 5 of the DPCSA does not apply to s 71AC of the Act) [605]-[606] per (Keiffel and Crennan JJ) Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34. 63 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34. 64 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [5], 58, [72]–[73] per French CJ; at 87–90, [146] per Gummow J; at 123 [280], 211 [546], 219–230 [574] per Crennan and Keifel JJ; at 250 [684] per Bell J. Gummow J held that ss 33, 36 and 37 are invalid: at [140], [145]; Heydon J held the entire Charter was invalid: at [371], [456].

[2.140]

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interpretation as set out in Project Blue Sky Inc v Australian Broadcasting Authority;65 a “remedial interpretation” is not permitted.66 The High Court was, however, split on the question of the relationship between ss 32(1) and 7(2). French CJ and Crennan and Keifel JJ decided that when in engaging in the interpretative process set out in s 32(1), s 7(2) is not to be taken into account.67 However, s 7(2) is engaged when it has been determined that a Charter right has been limited and is used to determine whether that limitation is justified.68 Gummow, Hayne, and Bell JJ found that s 7(2) can be taken into account in the interpretative process of s 32(1).69 Heydon J observed that if s 7(2) was valid, it would inform the interpretive process under s 32(1), but found s 7(2) was invalid.70 Both Heydon and Hayne JJ dissented regarding the form of final orders, and Heydon J dissented on the question of whether the appeal should be allowed. The High Court decision in Momcilovic has resulted in continuing uncertainty regarding the meaning of s 32(1) and how s 7(2) relates to the interpretive process required in s 32(1). After the decision, in a number of cases the Victorian Court of Appeal returned again to the relationship between ss 7(2) and 32(1) of the Charter.71 These cases are referred to in Part 2 of this chapter. The 2015 Review and ss 32 and 7 [2.140] The 2015 Review concluded that s 32(1) is unsatisfactory because of the existing uncertainty regarding the relationship between s 32(1) and s 7(2): Given this uncertainty a person interpreting Victorian law does not know whether to: 65 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. 66 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 See at 38 [18]- [20], 44-45 [38]-40], 50 [50]-[51], 54-55 [61]-[62] per French CJ; at 83 [146], 87–90 [148]–[160] per Gummow J; at 123 [280] per Hayne J, 211 [546], 217 [565], 220 [544]-[547] [565]-[566] per Crennan and Keifel JJ and at 250 [684]-[685] per Bell J. 67 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at 34 [35], [36] per French CJ; at [572]–[576] per Keifel and Crennan JJ. 68 The form of notice is provided in the Charter of Human Rights and Responsibilities (General) Regulations 2007 reg 6 as Form 2 in the Schedule. 69 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [166]–[168] per Gummow J; at [280] per Hayne J; at [683] per Bell J. 70 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [408]-[409] and [439]. 71 In Noone v Operation Smile (Aust) Inc (2012) 38 VR 569 the Court of Appeal noted that the High Court had not resolved the issue and Nettle JA considered it was appropriate for the Court of Appeal to apply the approach taken by the Court of Appeal in Momcilovic [142]. Warren CJ and Cavenough JA acknowledged the possibility but left the question open [30]-[31].

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[2.150]

• Look for compatibility with the human rights in sections 8 to 27 of the Charter, without considering whether any limitations on those rights are reasonable limitations, justifiable in a free and democratic society, or • Look for compatibility with human rights, considering the limitations clause in section 7(2) as part of the test of “compatibility”.72

The Review recommended s 32 of the Charter be amended to; (a) require statutory provisions to be interpreted, as far as it is possible to do so consistently with their purpose, in the way that is most compatible with human rights (b) require, where a choice must be made between possible meanings that are incompatible with human rights, that the provision be interpreted in the way that is least incompatible with human rights (c) make it clear that section 7(2) applies to the assessment of the interpretation of what is most compatible, or least incompatible, with human rights (d) set out the steps for interpreting statutory provisions compatibly with human rights, to ensure clarity and accessibility.73

Declaration of inconsistent interpretation [2.150] Under s 36(2) of the Charter, if the Supreme Court completes its interpretative function under s 32, the court can, in certain circumstances, make a declaration that a statutory provision is inconsistent with a Charter right. Section 36(2) of the Charter states that: Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

The Supreme Court must not make a declaration of inconsistent interpretation unless the court is satisfied that the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission are given notice in the prescribed form and a reasonable opportunity has been given to the Attorney-General and the Commission to intervene or make submissions in respect of the proposed declaration.74 Section 36(5) of the Charter states: If a declaration of inconsistent interpretation is ultimately made, that declaration does not affect in any way the validity, operation or enforcement of 72 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) p 142. 73 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) Recommendation 29, p 148 – supported by the government. 74 Section 36(4) of the Charter. An example is Momcilovic v The Queen (2010) 25 VR 436; [2010] VSCA 50 at [155].

[2.160]

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the statutory provision in respect of which the declaration was made or create in any person any legal right or give rise to any civil cause of action.75

The 2015 Review has recommended using the phrase “declarations of incompatible interpretation” instead of “declaration of inconsistent interpretation” in order to provide consistency with ss 32(1), 36 and 37.76 The government has accepted this recommendation.

Referral of a question of law to the Supreme Court [2.160]

Section 33(1) of the Charter provides:

If, in a proceeding before a court or a tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the statutory interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if – (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

If the question of law has arisen in proceedings in the Trial Division of the Supreme Court or in the County Court, then the referral is made to the Court of Appeal.77 Under s 35(1) of the Charter, the applicant must give notice of a referral (under s 33) to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission.78 An example of a referral under s 33(1) of the Charter is Slaveski v Smith79 where a judge of the County Court (on hearing an appeal from the Magistrates’ Court) referred three questions to the Court of Appeal relating to the application of the Charter.80 Those questions and the answers are discussed below at [2.250]. The 2015 review has recommended that the notice requirement in s 35 be abolished for proceedings in the County Court and instead, the trial judge should be given a discretionary power to require a notice be issued for a 75 If a declaration is made, the relevant Minister responsible for the Act must prepare a written response within 6 months of the date of the declaration and lay a copy before the parliament: s 37. 76 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015), Recommendation 32 p 162 – accepted by the government. 77 Charter s 33(3). 78 The form of notice is provided in the Charter of Human Rights and Responsibilities (General) Regulations 2007 reg 5 as Form 1 in the Schedule. Also see Supreme Court Practice Note No 3 of 2008. Intervention by the Equal Opportunity and Human Rights Commission has proved to be of very significant benefit to the courts, particularly the Court of Appeal in terms of identifying human rights issues and applicable principles and materials: See Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) p 90. 79 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25. 80 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25.

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Charter issue of general importance or when otherwise in the interests of justice to do so.81 This is to streamline the process. A referral of a question of law under s 33 of the Charter appears to be similar to the “Case Stated” procedure under s 302(1) of the Criminal Procedure Act 2009 (Vic), as discussed in Chapter 6 of this book at [6.1390]. However, because of the operation of s 33(4) of the Charter, a Charter question of law can only be referred pursuant to s 33(1) of the Charter.82

The right to appeal as a substantive human right [2.170]

Section 25(4) of the Charter states:

Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.

Section 25(4) is based on Art 14(5) of the International Covenant on Civil and Political Rights (“ICCPR”).83 This provision does not create a new right to instigate an appeal against conviction and sentence; it simply recognises this right in the Charter as one of many human rights. Although s 25(4) refers to a right of “review”, it seems clear that a “review” covers existing statutory rights of appeal as well as the right to judicial review. As discussed in Chapter 6 of this book, an appeal to the Court of Appeal against conviction or sentence requires the Court of Appeal to first grant leave to appeal, and in the High Court, “special leave” to appeal is required, as discussed in Chapter 9. The requirement of leave to appeal as a necessary precondition to an appeal is consistent with s 25(4) of the Charter as the court is required to consider the merits of the grounds of appeal in some detail before granting or refusing leave. This constitutes a “review” of the conviction or sentence.84 The right under s 25(4) of the Charter has not been considered by any Victorian court but a number of principles can be identified from the 81 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, Final Report (2015) Recommendation 33, p 169 — supported in part by the government. 82 Further, s 302(1) of the Criminal Procedure Act 2009 provides that s 302 only applies to “a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence”. In Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 the question of law arose out of an appeal to the County Court, as distinct from a trial in the County Court. In De Simone v Bevnol Constructions & Developments Pty Ltd (2010) 30 VR 211; [2010] VSCA 348 the court held that the referral of a question of law under s 33 of the Charter was not a Case Stated for the purposes of s 19(1) of the Appeals Cost Act 1998 (Vic). 83 Article 14(5) of the Covenant states: “Everyone convicted of a crime shall have the right to have the conviction and sentence reviewed by a higher tribunal according to law.” 84 See Australian Human Rights Commission, Inquiry Into the Criminal Cases Review Commission Bill 2010, Submission to the Legislative Review Committee of South Australia (25 November 2011).

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international jurisprudence relating to the ICCPR, and these give some guidance as to the scope and meaning of s 25(4) of the Charter.85 In summary: • The phrase “according to law” relates to the way in which the review is to be carried out and the court responsible. • If there is more than one avenue of appeal within the court hierarchy, the convicted person must be given the opportunity to pursue each of those avenues.86 • The right to a “review” does not require a full rehearing of the case. Article 14(5) of the ICCPR will be satisfied: where a higher court “looks at the allegations against a convicted person in great detail, considers the evidence submitted at the trial and referred to in the appeal, and finds that there was sufficient incriminating evidence to justify a finding of guilt in the specific case”.87

• Under the ICCPR, “the right in art 14(5) requires a convicted person to have access to the written judgment of the trial court and other relevant documents, such as trial transcripts, necessary to exercise the right”.88 The procedures and requirements in the appeal provisions under the Criminal Procedure Act 2009 (Vic) seem to comply with the requirements set out in Art 14(5) of the ICCPR and may be the reason why s 25(4) of the Charter has not, to date, been considered by the courts in Victoria.

PART 2: HOW THE CHARTER HAS BEEN ENGAGED IN CRIMINAL APPEALS AND REVIEWS Introduction [2.180] There are an unlimited number of ways in which the Charter could be engaged on an application, review, or appeal relating to criminal proceedings. In this section of the chapter, a number of examples are provided. The utility of the Charter does, however, highly depend upon the facts and circumstances of each particular case. The purpose of this section of the chapter is to give a “flavour” of how the Charter has been engaged in criminal-related matters, and hence how the Charter might be engaged in the future. 85 For a detailed discussion, see Judicial College of Victoria, Charter of Human Rights Bench Book at 6.19.8. 86 Judicial College of Victoria, Charter of Human Rights Bench Book at 6.19.8. This principle does not, however, apply in Victoria in respect to appeals from the Magistrates’ Court. The Criminal Procedure Act 2009 s 273 states that if a person appeals to the Supreme Court on a question of law, the person cannot appeal to the County Court in respect of the same matter. 87 See Judicial College of Victoria, Charter of Human Rights Bench Book at 6.19.8 [6], citing the UN Human Rights Committee, General Comment No 32 [48]. 88 See Judicial College of Victoria, Human Rights Bench Book at 6.19.8 [8], citing the UN Human Rights Committee, General Comment No 32 [49].

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[2.190]

The Charter and interlocutory appeals [2.190] In R v Chaouk89 the Court of Appeal made it clear that grounds of appeal relating to the Charter are not appropriate on an interlocutory appeal.90 As discussed in Chapter 5, interlocutory appeals are designed for a speedy resolution so as not to unnecessarily fragment and delay criminal proceedings. Charter arguments have the potential to raise complicated and novel issues, capable of consuming significant amounts of time and resources for both practitioners and the Court of Appeal. Those types of arguments are more suited for an appeal against conviction or sentence or judicial review.

Bail [2.200] The Charter could be relevant to an application for bail (or an appeal against a bail decision) in several ways.91 First, the following rights in the Charter may be relevant to the determination of bail: • freedom of movement: s 12; • “[a] person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law”: s 21(3); • a person who has been arrested and detained: (a) must be “promptly brought before a court”; (b) has the right to be brought to trial “without unreasonable delay”; and (c) must be released if paragraph (a) or (b) are not complied with: s 21(5); • a person awaiting trial must not be automatically detained in custody but his or her release may be subject to guarantees to attend court: s 21(6). However, these rights are not absolute and, as already noted, under s 7(2) of the Charter these rights may be subject to “reasonable” limitations. A court may well have to determine if a provision of the Bail Act 1977 (Vic) is a reasonable limitation of any of these rights. The second way that the Charter may be relevant to bail is pursuant to s 32(1), which requires a court to interpret all statutes “in a way that is compatible with human rights”. An appellant could argue, for example, that the way the primary decision-maker applied the Bail Act 1977 (Vic) was in breach of s 32(1) of the Charter. Third, the Charter could be relevant to bail in terms of the conditions of detention. Recall that s 38(1) of the Charter makes it unlawful for a public 89 R v Chaouk [2013] VSCA 99. 90 R v Chaouk [2013] VSCA 99 at [35], citing Wells v The Queen (No 2) [2010] VSCA 294 at [39] and [48]; cf WK v The Queen [2011] VSCA 345. 91 See G Hampel, D Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) Ch 4.

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authority to act in a way that is incompatible with a human right. Thus, in civil proceedings, a detainee could argue that the Office of Corrections has acted (or is acting) in contravention of s 38(1) and use this to buttress a claim pursuant to s 39(1) of the Charter.92 In Gray v DPP93 the applicant was refused bail on serious charges and applied to the Supreme Court for bail. Although neither the applicant nor the Crown raised the issue of the Charter, Bongiorno J stated that the relevant provisions in the Charter (that is, ss 21(5)(b) and (c) and 25(2)(c)) were “highly relevant” to the question of bail.94 Bongiorno J gave considerable weight to the possibility that the applicant may spend more time on remand than the expected sentence, stating: “It is of even greater significance now in light of the existence of the Charter and the provisions to which I have referred.”95 Having considered a range of other factors, His Honour granted bail. In Re Dickson96 the applicant had been refused bail by the Chief Judge of the County Court and made a fresh application to the Supreme Court, referring to the Charter. Lasry J noted that the Charter had not been raised before the Chief Judge.97 His Honour referred to s 21(5) (that is, brought to trial without unreasonable delay). In this case it would have been some two years and three months before the applicant’s trial was to commence. However, the applicant’s detention was also for other offences and breach of parole.98 His Honour stated: “I cannot conclude that the Charter requires that the Bail Act be interpreted to allow for an accused to be released on bail, regardless of an established unacceptable risk, whether it be a risk of flight, re-offending, interference with witnesses or otherwise.”99 Lasry J distinguished Gray v DPP on the basis that it was not submitted that Dickson would spend more time on remand (for the current offence) than the expected sentence100 and said: [T]he Charter has a significant role to play in emphasising the importance of particular rights, but when it comes to the right to be brought to trial without unreasonable delay, that right remains to be considered within the appropriate or relevant provisions of the Bail Act. … 92 See, for eg, Victorian Ombudsman, Investigation into Deaths and Harm in Custody, PP No 310 (March 2010); J Debeljak, “The Impact of Charter Jurisprudence on Human Rights in Prison” (2014) 2 Judicial College of Victoria Online Journal 153. 93 Gray v DPP [2008] VSC 4. 94 Gray v DPP [2008] VSC 4 at [10]. 95 Gray v DPP [2008] VSC 4 [12]. 96 Re Dickson [2008] VSC 516. 97 Re Dickson [2008] VSC 516 at [12]. 98 Re Dickson [2008] VSC 516 at [13]. 99 Re Dickson [2008] VSC 516 at [15]. 100 Re Dickson [2008] VSC 516 at [19].

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… I do not consider the provisions of the Charter materially affect the role of delay in this particular application.101

The application for bail was refused. Note that Lasry J held that the common law principles governing grants of bail have not been displaced by the Charter. In Barbaro v DPP (Cth)102 the applicant had been granted bail by a magistrate on a second application for bail. The Commonwealth Director of Public Prosecutions (DPP), who opposed both bail applications, appealed to the Trial Division where the order granting bail was quashed and bail revoked. The applicant then appealed the decision to revoke bail, to the Court of Appeal. On appeal, the applicant argued that the Supreme Court judge had misapplied s 4(2)(aa) of the Bail Act 1977 having regard to ss 21(5)(c) and 25(2)(c) of the Charter, which informs the way the Bail Act 1977 is applied. In a unanimous decision, the Court of Appeal dismissed the application for bail holding that the Charter does not affect the normal application of the provisions of the Bail Act 1977.103 Sections 21(5)(c) and 25(2)(c) of the Charter do not require s 4(2)(aa) of the Bail Act 1977 to have an altered meaning. In Woods v DPP104 four applicants applied for bail before Bell J. Three of the applicants were in a show cause situation and one applicant was prima facie entitled to bail, but bail was opposed on the basis of unacceptable risk. The applications were made following the enactment of the Bail Amendment Act 2013 which amended the power of courts to impose bail conditions. Bell J held that ss 12 of the Charter (freedom of movement) and 21 (right to liberty and security of the person) are potentially engaged under the Charter by the provisions of the Bail Act 1977 when deciding whether bail should be granted and, if bail is granted, upon what conditions.105 His Honour provided examples of other Charter provisions that could be relevant to bail,106 and noted that any provisions in the Bail Act 1977, and any bail conditions, will accord with s 7(2) of the Charter so long as they are compatible with human rights. Bell J referred to a note in s 5 of the Bail Act 1977 which refers to the relationship between the Charter and provisions in s 5 concerning bail conditions. His Honour granted bail to three of the applicants (determining that, because of the conditions imposed, they were not an unacceptable risk) and refused bail to the fourth applicant. 101 Re Dickson [2008] VSC 516 at [19] and [22]. 102 Barbaro v DPP (Cth) (2009) 20 VR 717; [2009] VSCA 26. 103 Barbaro v DPP (Cth) (2009) 20 VR 717; [2009] VSCA 26 at [39]–[41]. 104 Woods v DPP [2014] VSC 1. 105 Woods v DPP [2014] VSC 1 at [8]–[10]. 106 Woods v DPP [2014] VSC 1 at [14]–[19].

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Freedom of expression [2.210]

Section 15 of the Charter states:

(1) Every person has the right to hold an opinion without interference. (2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria.

The right to freedom of expression is not absolute and s 15(3) of the Charter confirms that: Special duties and responsibilities are attached to the right to freedom of expression and the right may be subject to lawful restrictions reasonably necessary – (a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality.

In Magee v Delaney107 the appellant was charged with damaging property under s 197(1) of the Crimes Act 1958 and possessing materials for the purpose of damaging property under s 199(a)(ii) of the Crimes Act 1958. The appellant had painted over an advertisement in a bus shelter and was carrying a bucket of paint and brushes in order to paint over more advertisements. At the summary hearing of the charges, the appellant argued that his actions engaged the right to freedom of expression in s 15(2) of the Charter, which therefore constituted a lawful excuse for the offences. The magistrate rejected both these arguments and convicted him of the charges. The appellant then appealed to the Supreme Court on a question of law. Because the appeal involved the application of the Charter, the AttorneyGeneral of Victoria was given notice under s 35 of the Charter. In dismissing the appeal, Kyrou J held that painting over the advertisements could constitute an act of imparting information or ideas as defined in s 15(2) of the Charter.108 However, in damaging the property of a third party, the act did not engage s 15(2).109 The expression “lawful restrictions reasonably necessary … for the protection of … public order” includes laws which allow citizens to engage in normal personal and business affairs without unlawful physical interference to their property or person.110 Sections 197(1) and 199(a)(1) of the Crimes Act 1958 fall within such lawful restrictions.111 His Honour held that ss 197 and 199 of the Crimes Act 1958 were compatible with s 15 of the Charter.

Acting in a way incompatible with a human right: s 38(1) [2.220]

To reiterate, s 38(1) of the Charter provides that:

107 Magee v Delaney [2012] VSC 407. Also see Fraser v Walker [2015] VCC 1911. 108 Magee v Delaney [2012] VSC 407 at [66]. 109 Magee v Delaney [2012] VSC 407 at [67] and [100]. 110 Magee v Delaney [2012] VSC 407 at [151]. 111 Magee v Delaney [2012] VSC 407 at [131].

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it is unlawful for a public authority to act in a way that is incompatible with a human right, or, in making a decision, to fail to give proper consideration to a relevant human right.

In Bare v IBAC112 the appellant claimed that in February 2009 he had been badly assaulted by the police in a random confrontation, as a result of which he had suffered serious injuries.113 In February 2010 the appellant lodged a formal written complaint with the Office of Police Integrity (“OPI”) claiming that the police misconduct had breached his rights under ss 10 (a person must not be subjected to torture or treated in a cruel or inhuman way) and s 8 of the Charter (equality before the law). The appellant also asserted that under s 10(b) of the Charter he had a right to an effective investigation of the complaint. Employees of the OPI subsequently determined under s 40(4)(b)(i) of the Police Integrity Act 2008 (Vic) that it would not be in the public interest for the OPI to investigate these complaints.114 The appellant then sought judicial review of this decision of the OPI on the basis that s 38(1) of the Charter had been breached in the decision not to investigate, and that the OPI had therefore acted in a way incompatible with his human rights. The trial judge refused the application for relief.115 The appellant then appealed the decision of the Supreme Court trial judge to dismiss the judicial review. By the time the appeal was heard and determined by the Court of Appeal, the Independent Broad-based Anti-corruption Commission (“IBAC”) had taken over the functions of the OPI. The issues for the Court of Appeal were: • whether the decision made under s 40(4)(b)(i) of the Police Integrity Act 2008 was protected from judicial review by a privative clause in s 109 of the Act; • whether s 38(1) of the Charter was applicable; • whether s 10(b) of the Charter contained an implied right to an effective and independent investigation; and • whether the OPI had breached s 38 of the Charter. In a majority decision, the Court of Appeal upheld the appeal, quashed the orders of the trial judge, and ordered that a fresh decision be made by the IBAC in accordance with the obligations on public authorities under s 38(1) of the Charter.

112 Bare v IBAC [2015] VSCA 197. 113 Bare v IBAC [2015] VSCA 197 at [5]–[7]. 114 Bare v IBAC [2015] VSCA 197 at [16]. 115 Bare v IBAC [2015] VSCA 197 at [67]–[69].

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Tate and Santamaria JJA held that the privative clause in s 109 did not apply to a decision not to investigate and hence judicial review was available.116 Warren CJ dissented on this issue.117 All members of the court held that s 38(1) of the Charter did apply to a decision made by the OPI under s 40(4)(b)(i) of the Police Integrity Act 2008. The majority held that the OPI had breached s 38(1) of the Charter by failing to give proper consideration to the human rights of the appellant.118 Warren CJ also considered that the OPI had not given sufficient consideration to the rights of the appellant.119 All members of the court however held that s 10(b) of the Charter did not encompass a right to a full and independent investigation.120

Rights in criminal proceedings Right to legal assistance [2.230] Section 25 of the Charter sets out a range of human rights for persons charged with or convicted of a criminal offence. Section 25(d) – (f) set out the scope of the right to legal assistance. A person has the right: (d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and (e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and (f) to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978.

Note that the rights set out in s 25(2) are expressed to be “minimum guarantees”. Independent of s 25 of the Charter, s 24(1) of the Legal Aid Act 1978 (Vic) provides that Victoria Legal Aid (“VLA”) may provide legal assistance if it is of the opinion that the person is unable to afford the cost of legal representation, and if it is reasonable to provide such assistance having regard to all relevant considerations. The key issue is how do s 25(2)(d)(e) and (f) of the Charter relate to s 24 of the Legal Aid Act 1978 (Vic). Is s 24 of the Legal Aid Act 1978 (Vic) to be interpreted so as to “guarantee” legal assistance to an applicant if the statutory criteria are met? 116 Bare v IBAC [2015] VSCA 197 at [373], [376] per Tate JA; at [495], [598] per Santamaria JA. 117 Bare v IBAC [2015] VSCA 197 at [94]–[115]. 118 Bare v IBAC [2015] VSCA 197 at [235], [298] per Tate JA; at [495], [558] per Santamaria JA. 119 Bare v IBAC [2015] VSCA 197 at [221]. 120 Bare v IBAC [2015] VSCA 197 at [239], [458] per Tate JA; at [631], [667] per Santamaria JA; at [214], [215] per Warren CJ.

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R v Williams [2.240] In R v Williams121 the applicant was due to stand trial on serious offences. The applicant applied for an adjournment of six months so that his counsel of choice could represent him. The applicant argued that s 24(1) of the Charter gave him an absolute right to counsel of choice: s 24(1) of the Charter provides a right to a “fair” hearing. The applicant also argued that when a court listed a matter, the court was acting in an administrative capacity and was thus a public authority for the purposes of the Charter and, as such, was obliged to act in a manner compatible with human rights. Her Honour Justice King held, that the Charter did not apply to any application for an adjournment because of the transitional provisions in s 49(2) of the Charter.122 Further, that even if the Charter did apply, the result would be the same. The application was dismissed. Her Honour also made the following points: (a) For the purposes of the Charter, a judge is not acting in an administrative capacity when determining an application for an adjournment, when the matter has already been listed.123 (b) The rights set out in s 25 are not absolute rights but limited by the operation of s 7(2) and therefore can be subject to reasonable limitations as can be demonstrably justified in a free and democratic society.124 Given that the applicant had already been granted legal aid, it was reasonable that he be able to choose some other counsel to represent him.125 Slaveski v Smith [2.250] In Slaveski v Smith,126 a judge of the County Court referred the following three questions to the Court of Appeal pursuant to s 33(1) of the Charter: (1) Does s 25(2)(f) of the Charter require that the word “trial” in s 197 of the Criminal Procedure Act 2009 be interpreted to include the trial of an indictable matter heard on appeal from the Magistrate’s Court, so as to permit a County Court judge in an appropriate case to order Victoria Legal Aid to provide free legal aid? (2) Does s 25(2)(f) of the Charter operate to afford an enforceable right to legal representation to a person who is eligible upon criteria of the Legal Aid Act 1978, independent of the exercise of any discretion by Victoria Legal Aid under the Legal Aid Act 1978? (3) Does the right to a fair trial pursuant to s 24(1) of the Charter operate to include the right to be legally represented? 121 R v Williams (2007) 16 VR 168; [2007] VSC 2. 122 R v Williams (2007) 16 VR 168; [2007] VSC 2 at [48]. 123 R v Williams (2007) 16 VR 168; [2007] VSC 2 at [50]. 124 R v Williams (2007) 16 VR 168; [2007] VSC 2 at [56]. 125 R v Williams (2007) 16 VR 168; [2007] VSC 2 at [70]. 126 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25.

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In this case the plaintiff (Mr Slaveski) was charged with making a threat to kill. The charge was heard in the Magistrates’ Court and the plaintiff was convicted. He then appealed the conviction to the County Court and was granted legal aid for the appeal. The appeal was adjourned several times due to the appellant’s counsel withdrawing. In the meantime, VLA withdrew aid on the basis that the appellant refused to follow reasonable advice and was in breach of his terms for the grant of legal assistance.127 When the matter finally came on for hearing, the appellant appeared unrepresented. A representative from VLA advised the County Court judge that aid would not be provided. The judge referred VLA to s 197 of the Criminal Procedure Act 2009 and asked VLA to reconsider the grant of aid.128 VLA advised that s 197 did not apply to a County Court appeal. The appellant then queried whether he was entitled to legal representation under the Charter. In these circumstances the County Court judge referred the questions of law to the Court of Appeal. The Court of Appeal first considered Question 2 (right to legal aid under s 25(1) of the Charter). The court set out s 24 of the Legal Aid Act 1978 and noted that the decision as to whether a person is to receive legal aid is a discretionary decision for VLA, as distinct from an absolute right to legal aid.129 Their Honours then considered the operation of ss 32(1) and 7(2) of the Charter, referring to the High Court decision in Momcilovic v Queen and noting that six of the justices (French CJ, Crennan, Keifel, Gummow, Hayne and Bell JJ) held that s 32(1): does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of parliament in enacting the provision, but in effect requires the court to discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction essayed in Project Blue Sky Inc Broadcasting Authority.130

The Court of Appeal added: Putting aside the disparity of views as to the application of s 7(2), it nonetheless emerges from Momcilovic that the effect of s 32(1) is limited. It requires: “Statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality 127 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [4]. 128 Section 197 of the Criminal Procedure Act 2009 (Vic) provides that a trial judge can order VLA to provide legal assistance if a court is satisfied that: “(a) it will be unable to ensure that the accused will receive a fair trial; and (b) the accused is in need of legal representation because the accused is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial.” Section 197 broadly follows the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292. 129 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [16]. 130 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [20] (citation omitted).

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requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) [thus] applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application”.131

The court then considered s 7(2) of the Charter and noted that the Victorian Court of Appeal (in Momcilovic) had previously held that “the interpretive task under s 32 does not involve the application of s 7(2), which needs to be considered only for the purpose of making a declaration of inconsistent interpretation under s 36(7)”.132 It was noted by the court that in Momcilovic three justices of the High Court (French CJ, Crennan and Kieffel JJ) held that s 7(2) was not to be taken into account in the interpretive task under s 32(1) but would only be engaged when and if “the statutory provision under consideration imposes a limit on its enjoyment”.133 Three other justices (Gummow, Hayne and Bell JJ) held that s 7(2) does inform the interpretive process in s 32(1).134 Heydon J held that if s 7(2) was valid, it would form part of the interpretive process in s 32(1), but His Honour held s 7(2) (and s 32(1)) was invalid.135 Against the uncertainty arising from the High Court decision in Momcilovic, the Court of Appeal described the proper approach under s 32(1) in the following terms: Consequently, if the words of a statute are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.136

When that approach was applied to the interpretation of s 24 of the Legal Aid Act 1978, the Court of Appeal held that it was not the intention of Parliament to convey, via s 25(2)(d) of the Charter, that “VLA must always exercise the power to grant legal aid favourably to the applicant whenever the applicant satisfies the requirements in s 24(1)(a) of the Legal 131 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [23], referring to Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [51] per French CJ. 132 R v Momcilovic (2010) 25 VR 436; [2010] VSCA 50 at [35]. 133 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [21]. See [2.130] of this chapter for a more detailed discussion. 134 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [21]. 135 See [2.130] of this chapter for a more detailed discussion. 136 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [24] (footnotes omitted).

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Aid Act”.137 The court provided five reasons for reaching this conclusion.138 The Court then indicated the answer to Question 2 was that: the rights of a person to legal representation accorded by s 25(2)(d) and (f) of the Charter are conditional upon the person being eligible for legal representation under the Legal Aid Act; and that, insofar as the person’s eligibility for legal assistance under the Legal Aid Act is dependent upon a favourable exercise of discretion by VLA, neither s 25(2)(d) or (f) confer an entitlement to legal assistance independent of the exercise of discretion by VLA.139

In respect to Question 1, the Court of Appeal held that s 197 of the Criminal Procedure Act 2009 does not apply to a County Court appeal.140 Section 197 only applies to a trial on indictment before a jury and appears in Ch 5 of the Criminal Procedure Act 2009, whilst appeals to the County Court are dealt with in Ch 6 of that Act. The court also had regard to the way in which s 32(1) of the Charter is to be applied and, specifically, that s 32(1) does not “authorise a process of interpretation which departs from established understandings of the process of construction”.141 The answer to Question 1 was thus “No”. In respect to Question 3 (the right to a fair trial under s 24(1) of the Charter), the issue for the court was whether, apart from s 25(2)(d) and (f) of the Charter, “there is a right to legal aid under s 24(1) of the Charter because a fair trial cannot be held without legal representation”. In other words, to have a fair trial, must the accused always have legal representation? The court concluded that there is no definite “yes” or “no” answer to this question; much depends upon the facts and circumstances of the individual case. In some cases the lack of legal representation could result in an unfair trial, but the lack of legal representation in itself does not automatically mean the trial is unfair. The court referred to Art 6(1) of Sch 1 to the Human Rights Act 1988 (UK) (which recognises the right to a fair and public hearing) and the judgment of Chadwick LJ in Perotti v Collyer-Bristow,142 a decision of the English Court of Appeal. In Perotti Chadwick LJ stated (in paraphrase) that the test (to determine whether the provision of legal assistance is an essential prerequisite to a fair trial) is not whether the court would find it easier to decide the case on the facts of the case, but whether “a court is put in a position that it 137 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [26]. 138 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [27]. 139 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [29]. 140 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [44]–[47]. 141 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [45]. 142 Perotti v Collyer-Bristow [2004] 2 All ER 189; [2003] EWCA Civ 266 at 196–197 (All ER) [31]–[32].

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really cannot do justice in the case because it has no confidence in its ability to grasp the facts and principles of the matter which it has to decide”.143 The Victorian Court of Appeal concluded that: it may be said that s 24(1) creates a right to legal representation in limited circumstances. It is, however, no more than reflective of the position at common law. An indigent person does not have a right at common law to be represented at the State’s expense on a serious criminal offence. He has a right to a fair trial, more accurately expressed in negative terms as a right not to be tried unfairly. Depending upon the circumstances of the case, including the background of the person, lack of legal representation may mean that the person is unable to receive a fair trial.144

The court held that the same general approach should be taken under the Charter and the answer to Question 3, therefore, was: “Yes, but only if the absence of legal aid would preclude the court from reaching a just decision.”145 The judgment in Slaveski shows that the rights in the Charter are by no means absolute, and do not extend the scope of common law rights. It also shows that s 32(1) of the Charter has a limited scope of operation and does not alter conventional approaches to statutory interpretation. Despite the observations in Slaveski, the precise relationship between ss 7(2) and 32(1) remains unclear.146

Right to privacy [2.260]

Section 13 of the Charter states:

A person has the right – (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) not to have his or her reputation unlawfully attacked.

In WK v The Queen147 the applicant was facing trial on a charge of attempting, by threats or intimidation, to procure the complainant to take part in an act of sexual penetration with him (contrary to s 57(1) of the Crimes Act 1958 (Vic)). In brief, the complainant told the police the applicant had threatened to publish nude photos of her if she did not agree to have regular sex with him. The police advised the complainant to 143 Perotti v Collyer-Bristow [2004] 2 All ER 189; [2003] EWCA Civ 266 at 196–197 (All ER) [31]–[32]. 144 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [52]. 145 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25 at [59]. 146 See, eg, Noone v Operation Smile (Aust) Inc (2012) 38 VR 569; [2012] VSCA 91; WBM v Chief Commissioner of Police (2012) 230 A Crim R 322; [2012] VSCA 159 at [80]; Nigro v Secretary, Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 at [88]; Victoria Police Toll Enforcement v Taha [2013] VSCA 37 at [214]. 147 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345.

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take part in a pre-text telephone call with the applicant. The complainant agreed and was provided with a recording device by the police. The complainant subsequently taped incriminating statements from the applicant, the transcript of which formed a crucial part of the prosecution case. The defence objected to admission of the transcript on the basis that the police had breached s 6 of the Surveillance Devices Act 1999 (Vic) and argued that the judge should exclude the evidence under s 138 or 90 of the Evidence Act 2008 (Vic). Section 6(1) of the Surveillance Devices Act 1999 states that it is a criminal offence for a person to: knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.

The trial judge ruled that the police had “used” the listening device and the evidence had been obtained unlawfully because the police did not have a warrant. However, in the exercise of his judicial discretion, the trial judge ruled that the evidence was, nevertheless, admissible. The applicant then commenced an interlocutory appeal against the decision (to admit the evidence) to the Court of Appeal (consisting of Maxwell P, Nettle and Harper JJA). One of the questions to be decided by the Court of Appeal was how s 6 of the Surveillance Devices Act 1999 should be interpreted in view of s 32(1) of the Charter which requires a court to interpret a statutory provision “in a way that is compatible with human rights”. On a strict application of s 32(1), the court should give primacy to s 13 of the Charter, which recognises the privacy of the applicant. This issue also raises the question of whether s 7(2) of the Charter should be taken into account in the s 32(1) interpretive process. The applicant argued that the interpretation of s 6 of the Surveillance Devices Act 1999 engages s 13(a) of the Charter and that, accordingly, a broad interpretation of the meaning of s 6 should be given since it is compatible with the human right to privacy.148 Maxwell P referred to the High Court decision in Momcilovic which held that under s 32(1) the conventional approaches to statutory interpretation apply,149 and concluded that the word “use” in s 6 of the Surveillance Devices Act 1999 means that the person (the user) is the operator of the device and engages the recording capability of the device.150 His Honour described this as “direct use”.151 The complainant was thus the only person who used the device, not the police. On this view, the trial judge was in error to hold that the police were in breach of the Surveillance 148 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [23]. 149 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [28]. 150 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [16]. 151 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [16].

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Devices Act 1999.152 Moreover, because the user of the device was a private citizen, there had not been any breach of the Charter, in particular s 13 of the Charter. The complainant had a legal right to record the conversation.153 However, Maxwell P also held that the trial judge was correct not to exclude the evidence in the exercise of the trial judge’s discretion. Nettle J held that there was no clear decision from the High Court regarding whether s 7(2) of the Charter is part of the interpretive process in s 32(1) and, as a result, he was not sure how s 6 of the Surveillance Devices Act 1999 should be interpreted.154 His Honour stated, however, that the result would be the same regardless of which view of the High Court decision in Momcilovic was adopted.155 Nettle J agreed that so long as the complainant is the person recording the conversation, there is no breach of s 6 of the Surveillance Devices Act 1999.156 However, “it would be otherwise if the device used by the complainant were part of the equipment being used by the police to listen to and record the conversation remotely”.157 In these circumstances, his Honour held there would be a breach of s 13 of the Charter.158 Since this was not the case, the Charter was not engaged, and his Honour agreed with the decision of the trial judge to admit the evidence.159 Harper J held that s 32(1) of the Charter was not engaged because where a person is committing a criminal offence, he or she cannot rely on the right of privacy in s 13 of the Charter to protect them from the consequences of committing that offence.160 Accordingly, the application for leave to appeal the interlocutory decision was refused. The case of WK illustrates the important role that ss 32(1) and 7(2) of the Charter can play in the determination of a criminal appeal.

Right to freedom of movement [2.270]

Section 12 of the Charter states:

Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

In DPP v Kaba,161 Kaba was a passenger in a car which was randomly stopped by the police for a routine check. The driver consented to a 152 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [38]. 153 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [39]. 154 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [55]. 155 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [59]. 156 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [61]. 157 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [61]. 158 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [61]. 159 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [64], [74]. 160 WK v The Queen (2011) 33 VR 516; 216 A Crim R 421; [2011] VSCA 345 at [72]. 161 DPP v Kaba [2014] VSC 52.

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search of the car, but Kaba indignantly left the vehicle and proceeded to walk along the footpath. The police followed him and repeatedly asked for his name. Kaba refused to give his name, and accused the police of harassment and of being racist. The police subsequently arrested Kaba and escorted him back to the police car where he assaulted the police. Eight charges were brought against Kaba, including assaulting police, using indecent language, and behaving in an offensive manner. At a preliminary hearing of the charges, the magistrate ruled that the police evidence was inadmissible because it had been obtained unlawfully and should be excluded under s 138 of the Evidence Act 2008.162 The magistrate found: (a) that there was no power under s 59(1)(a) of the Road Safety Act 1986 (Vic) for the police to intercept the vehicle; and (b) that the police had breached s 38 of the Charter by not giving proper consideration to Kaba’s rights under the Charter. Further, that Kaba’s rights to freedom of movement, privacy, and not to be subjected to arbitrary detention were breached.163 The exclusion of the evidence of the police meant the entire prosecution case collapsed. The hearing of the matter was adjourned, and the DPP commenced a judicial review of the decision of the magistrate. The judgment of Bell J provides an extremely detailed and comprehensive analysis of the relevance of human rights in criminal litigation under Australian common law, the Charter, international law, and the law in other countries. (The judgment also discusses the use of judicial review in part-heard criminal proceedings.)164 Bell J held that the magistrate was in error in holding that the police did not have a power under s 59(1) of the Road Safety Act 1986. The magistrate had misinterpreted the legislation. However, Bell J held that the magistrate was correct in the way he had applied the Victorian Charter and confirmed that a number of Charter rights of Kaba had been breached (namely, the right to freedom of movement and the right to privacy). Bell J quashed the ruling of the magistrate and remitted the case back to the magistrate to reconsider whether the evidence should be excluded under s 138 of the Evidence Act 2008 (Vic). Bell J determined that where Charter rights may have been breached, before considering s 7(2) of the Charter it is first necessary to determine the scope of the relevant right under the Charter.165 The Charter should be interpreted broadly and not in a narrow way.166 Bell J held, therefore,

162 DPP v Kaba [2014] VSC 52 at [25]. 163 DPP v Kaba [2014] VSC 52 at [40. 164 DPP v Kaba [2014] VSC 52 at [11]–[18]. 165 DPP v Kaba [2014] VSC 52 at [106]. 166 DPP v Kaba [2014] VSC 52 at [108.

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that Kaba’s “right to liberty” had not been breached because a routine check of the car, for a short period of time, did not amount to a physical detention of the driver.167 However, stopping the car and demanding names and addresses did breach the right to freedom of movement under s 12 of the Charter.168 The driver’s name and address, and that of Kaba, were personal information and also protected by s 13(a) of the Charter.169 Stopping the car and demanding the names and addresses of both the driver and the passenger also interfered with their rights to privacy.170 Bell J then considered the operation of s 32(1) of the Charter and held that the power of the police to randomly stop vehicles and demand names and addresses was not “arbitrary” and represented a reasonable response of government in the regulation of drivers.171 It was clear that Parliament intended to give the police a power to randomly stop vehicles and no other interpretation of s 59 of the Road Safety Act 1986 was available.172 DPP v Kaba is an important illustration of the centrality of the Charter to the determination of a judicial review.

Right to a fair hearing [2.280]

Section 24 of the Charter states:

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. (2) Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter. (3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

Section 24(1) applies to both civil and criminal proceedings. The section recognises a number of different aspects of what makes a hearing fair or unfair. To be a “fair” hearing, the court or tribunal must be competent (that is, the judicial officer is properly qualified and able to conduct the hearing), independent (that is, the court is an independent entity from the Executive government), and impartial (that is, the judicial officer exercises an independent mind in the resolution of the issues and is not biased). All of these attributes are aspects of the rule of law. In addition, s 24(1) also requires that the hearing be conducted in public. 167 DPP v Kaba [2014] VSC 52 at [112]. 168 DPP v Kaba [2014] VSC 52 at [118]. 169 DPP v Kaba [2014] VSC 52 at [32]–[34]. 170 DPP v Kaba [2014] VSC 52 at [32]–[34]. 171 DPP v Kaba [2014] VSC 52 at [159]. 172 DPP v Kaba [2014] VSC 52 at [239].

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The concept of a “fair” hearing is perhaps the most general and all-embracing of all legal constructs. What makes a hearing fair or unfair will vary according to the particular facts and circumstances of each case. Law reports are replete with examples.173 Section 24(2) recognises a legitimate limitation of the right to a “public” hearing by permitting a court to close the proceedings to the public in appropriate circumstances.174 This is an example of a reasonable limitation under s 7(2) of the Charter. Section 24(3) recognises the obligation of courts to make judgments and decisions public, rather than hidden behind closed doors, but also recognises a legitimate limitation on that right if it is in the interest of a child not to make the details public. Given the breadth of the right to a fair hearing in s 24 it is not possible to discuss each and every aspect of this general right. (The right to legal assistance is part of a fair hearing and has been discussed above at [2.210].) Rather, several examples will be provided where the Charter has been relied on to argue that a particular hearing was not “fair”. Taha v Broadmeadows Magistrates’ Court [2.290] In Taha v Broadmeadows Magistrates’ Court,175 the two plaintiffs appeared before the Magistrates’ Court at Broadmeadows in respect to unpaid fines.176 Both plaintiffs suffered from various forms of mental disability and mental impairment. Section 160(1) of the Infringements Act 2006 (Vic) (“the Act”) provides that an infringement offender “may be imprisoned for one day in respect of each penalty unit” equivalent to the fine. Section 160(2) provides that if the court is satisfied the offender has a mental illness or intellectual impairment, disorder, disease or illness, the court may discharge the outstanding fines or adjourn the hearing. In Taha the magistrate declined to exercise his discretion under s 160(2) of the Act and ordered that the plaintiffs be imprisoned. On a judicial review, the plaintiffs argued that when applying s 160(2) of the Infringements Act 2006 the court is required to take into account ss 8, 21, 24 and 32 of the Charter and therefore was required to take into account their circumstances before deciding to imprison them.177 The plaintiffs also argued that a magistrate was a public authority under ss 6(2)(b) and 38 of the Charter. Emerton J upheld the judicial review, quashed the orders of the magistrate and remitted the two cases back to the Magistrates’ Court to be 173 For a useful account, see Warren CJ in Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [38]–[49]. 174 The Open Courts Act 2013 (Vic) governs the circumstances in which it is proper for a court to be closed to the public and to limit publication of the proceedings. 175 Taha v Broadmeadows Magistrates’ Court [2011] VSC 642. 176 The fines were imposed in respect to minor public transport offences. 177 Taha v Broadmeadows Magistrates’ Court [2011] VSC 642 at [23], [26].

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dealt with again.178 Her Honour held that a “unified” approach should be taken to the construction of s 160 and that the Charter not only supported a unified approach, but required the magistrate to adopt an interpretation of s 160 which least infringed the human rights of the plaintiffs.179 Emerton J held it unnecessary to decide if the magistrate was a public authority under the Charter.180 However, procedural fairness required the magistrate to take into account the circumstances of the plaintiffs. Her Honour found that it was jurisdictional error to apply s 160(1) of the Act without regard to the circumstances of the plaintiffs.181 On an appeal against this decision of Emerton J, the Court of Appeal confirmed that the decision of Emerton J was correct.182 The Court of Appeal held that a unified construction of s 160 of the Act was supported by principle and by the Charter.183 Such an approach was the most compatible with the obligation to interpret a statute compatible with human rights. The specific rights concerned were the right to liberty (s 21),184 the right to a fair hearing (s 24(1))185 and the right to equal protection before the law: s 8(3).186 Rich v The Queen [2.300] In Rich v The Queen the appellant sought leave to appeal against his conviction and sentence for murder.187 One of the (many) grounds of appeal was that s 5 of the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 (Vic) was inconsistent with his right to a fair trial under s 24(1) of the Charter.188 Section 5 incorporated s 165 into the Evidence (Miscellaneous Provisions) Act 1958 (Vic) which provides, in effect, that it is unnecessary for nominated affidavits to comply with statutory requirements for the swearing of affidavits.189 The appellant’s argument was that s 5 deprived him of being able to argue that the relevant evidence should be excluded on the basis that it 178 Taha v Broadmeadows Magistrates’ Court [2011] VSC 642 at [81], [99]. 179 Taha v Broadmeadows Magistrates’ Court [2011] VSC 642 at [59], [63]. 180 Taha v Broadmeadows Magistrates’ Court [2011] VSC 642 at [71]. 181 Taha v Broadmeadows Magistrates’ Court [2011] VSC 642 at [75], [79]. 182 Victoria Police Toll Enforcement v Taha [2013] VSCA 37. 183 Victoria Police Toll Enforcement v Taha [2013] VSCA 37 at [18], [25] per Nettle JA; at [59], [195] per Tate JA. 184 Victoria Police Toll Enforcement v Taha [2013] VSCA 37 at [197 per Tate JA. 185 Victoria Police Toll Enforcement v Taha [2013] VSCA 37 at [202] per Tate JA. 186 Victoria Police Toll Enforcement v Taha [2013] VSCA 37 at [209] per Tate JA. 187 Rich v The Queen (2014) 312 ALR 429; [2014] VSCA 126. 188 Rich v The Queen (2014) 312 ALR 429; [2014] VSCA 126 at [295]. 189 Following the decision of the Court of Appeal in R v Marjancevic (1991) 54 A Crim R 431.

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was obtained unlawfully.190 Rich argued that the affidavit in question had not been properly sworn and had been used to obtain key Crown evidence against him. He argued that if this had been known at the trial he could have objected to the evidence and that, in these circumstances, his trial was unfair. The Court of Appeal rejected the argument and held that the appellant had not been deprived of a fair trial.191 The evidence should not have been excluded.192 The court stated that: the evidence was real, objective evidence and there was nothing said or done by the police in obtaining it which may have detracted from its reliability or cogency.193

The court stated that even if it had been known at the time of the trial that the affidavits had not been properly sworn, the evidence should still have been admitted.194 Re an application under the Major Crime (Investigative Powers) Act 2004 [2.310] The Charter can be engaged in proceedings other than a criminal appeal or judicial review. In Re an application under the Major Crime (Investigative Powers) Act 2004 the applicant (“DAS”) made an application to the Supreme Court to vary a coercive powers order made by a judge of the Trial Division of the Supreme Court.195 The application was heard and determined by Warren CJ. The order that was the subject of the application was: that any person who has been charged with any offence linked to the organised crime offence the subject of the coercive powers order will not be summonsed to give evidence at an examination until resolution of the issue with respect to s 25(2)(k) of the Charter of Human Rights and Responsibilities Act 2006.196

190 Rich v The Queen (2014) 312 ALR 429; [2014] VSCA 126 at [297]. The relevant evidence was documentary evidence in the form of financial records showing the appellant received a large amount of cash shortly after the time of the offence. The evidence was found pursuant to a search where the warrant was based on the faulty affidavit. 191 Rich v The Queen (2014) 312 ALR 429; [2014] VSCA 126 at [298]. 192 Rich v The Queen (2014) 312 ALR 429; [2014] VSCA 126 at [298]. 193 Rich v The Queen (2014) 312 ALR 429; [2014] VSCA 126 at [300]. 194 Rich v The Queen (2014) 312 ALR 429; [2014] VSCA 126 at [302]. 195 Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381. The full title of the case is In the Matter of the Major Crime (Investigative Powers) Act 2004 and In the Matter of an application under section 5(1) of the Act for a coercive powers order; DAS (Applicant) v Human Rights & Equal Opportunity Commission (Intervener). 196 Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [1].

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Section 25(2)(k) of the Charter recognises the right “not to be compelled to testify against himself or herself or to confess guilt”. This is the right against self-incrimination. In principle, if evidence that has been obtained in breach of s 25(2)(k) is admitted into evidence at trial, then the trial is unfair. The applicant in this case was a member of Victoria Police and was seeking authorisation from the court to question an individual under the Major Crime (Investigative Powers) Act 2004 (“the Act”). Warren CJ stated: Thus, the matter to be clarified and determined is the nature of the relationship between the powers of investigation of organised crime offences in the Act, and the human rights guaranteed by ss 24(1) and 25(2)(k) of the Charter, namely, a person’s right to a fair hearing and right not to be compelled to testify against him or herself or to confess guilt.197

Section 39(1) of the Act provides that a person is not excused from answering questions or giving information at an examination on the basis that the answer or information might tend to incriminate the person. However, s 39(3) states that the evidence provided at the examination is not admissible against the person in any criminal proceedings. Her Honour then set out the purpose of the Charter and the interpretive role of the courts under s 32198 and explained the distinction between a “direct use” immunity and a “derivative use” immunity.199 The specific issue in this case was: [I]s it lawful, having regard to the directions of the Charter, for the Chief Examiner when exercising his or her functions under the Act, to compel a person who has been charged with an offence to answer questions relevant to the proof of the offence, or offences linked to that offence, which are not for direct use but can lead to derivative use? If it is not lawful, to what extent can derivative use immunity be interpreted consistently with the purpose of the Act. And, if consistent interpretation is not achievable, should the Court issue a declaration of inconsistent interpretation?200

197 Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [2]. 198 Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [17]–[24]. 199 Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [26]. 200 Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [28].

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Warren CJ considered the ordinary meaning of the legislation and whether a result can be reached without recourse to the Charter. Her Honour considered s 7(2) of the Charter201 and ultimately concluded that the Charter should not be limited to persons charged with a criminal offence but should also apply to persons who are compelled to give evidence on oath, and to have that evidence used against them at trial.202 Warren CJ concluded that it would be unfair to use derivatively obtained evidence (from evidence given at an examination): “The Charter requires derivative use immunity and that ought to be recognised at an early stage so that all affected operate on a clear understanding of legal rights and obligations.”203 Her Honour concluded: In interpreting s 39 of the Major Crime (Investigative Powers) Act 2004, derivative use immunity must be extended to a witness interrogated pursuant to the terms of the Act where the evidence elicited from the interrogation could not have been obtained, or the significance of which could not have been appreciated, but for the evidence of the witness. Derivative use of the evidence obtained pursuant to compelled testimony must not be admissible against any person affected by s 39 of the Act unless the evidence is discoverable through alternative means.204

In this case the provisions of the Charter thus played a critical role in the determination of the balance between the rights and interests of law enforcement and the rights and interests of persons being questioned.

CONCLUSION [2.320] Enactment of the Charter in 2006 marked a firm commitment to require all arms of government to give human rights proper consideration, recognition and protection. However, the Charter is a complex statute and it is not surprising that weaknesses in the Act have been identified over the eight years it has been operating. On the positive side, the Charter has, to some extent, elevated “rights consciousness” throughout government, including the legal system. There has been a significant increase in awareness of human rights, and their importance, throughout public authorities and throughout the legal profession in Victoria. The role of the Judicial College of Victoria in this regard has been very important and will continue to be important, not just for practitioners, but also for judicial officers. 201 Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [144]. 202 Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [162]. 203 Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [167]. 204 Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [177].

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The Charter has proved to be a valuable guide in the statutory interpretation process and has been engaged in a significant number of criminal-related cases at first instance and on appeal. As a consequence, the meaning and scope of many of the rights set out in Pt 2 of the Charter have been clarified. The Charter has assisted courts in arriving at decisions which give proper effect and consideration to human rights. Whilst this chapter has focused on the effects of the Charter on the courts, there is no doubt that the Charter is also having a significant impact on the decision-making processes and practices within government agencies.205 Many of the sections in the Charter are complex and capable of several interpretations. Perhaps the most important example is s 32(1) and the relationship between ss 32(1) and 7(2), and the competing interpretations provided by the High Court in Momcilovic v The Queen. There are also uncertainties regarding the scope of ss 38 and 39.206 Broader questions remain, such as the role that administrative law principles can play in the operation of the Charter.207 The courts in general have taken a cautious approach to the application of the Charter; there has not been a “revolution” in statutory interpretive methods or approaches to statutory construction. As a consequence of the courts in Victoria referring to decisions of foreign courts, the provisions of international instruments, such as the International Covenant on Civil and Political Rights, and principles of international law, what could be described as the “internationalisation” of human rights jurisprudence is developing. It will be interesting to see how this trend develops given that the constitution and legal processes of foreign courts vary considerably with the way in which the law has developed in Australia.208 The long-term impact of the Charter on the overall legal system in Victoria is a complex and as yet unresolved question. There is no doubt that the Charter has changed legal attitudes to human rights. Human rights are now accorded greater importance, and the requirement to take 205 See H de Kretser, “Application of the Victorian Human Rights Charter in Legal Practice: Discrimination and Equal Opportunity” (2014) 2 Judicial College of Victoria Online Journal 166. 206 See, eg, Justice E Kyrou, “Obligations of Public Authorities under Section 38 of the Victorian Charter of Human Rights and Responsibilities” (2014) 2 Judicial College of Victoria Online Journal 77; M Moshinsky, “Bringing Legal Proceedings against Public Authorities for Breach of the Charter of Human Rights and Responsibilities” (2014) 2 Judicial College of Victoria Online Journal 91. 207 M Moshinsky, “Bringing Legal Proceedings against Public Authorities for Breach of the Charter of Human Rights and Responsibilities” (2014) 2 Judicial College of Victoria Online Journal 91. 208 Rt Hon Chief Justice Dame S Elias, “A Voyage around Statutory Protections of Human Rights” (2014) 2 Judicial College of Victoria Online Journal 4.

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human rights into account when creating and interpreting statutes, and enforcing the law, is now a formal legal responsibility. Whilst the Charter has certainly raised awareness of the importance of human rights, and how those rights need to be taken into account by all arms of government, as the opening quote from Warren CJ and Tate JA indicates, there remains considerable potential for the Charter to be even more routinely engaged by practitioners.

Chapter 3

Appeal and Other Applications from the Children’s Court of Victoria [3.10] Introduction .......................................................................................................................... 111 [3.20] Criminal jurisdiction of the Children’s Court ............................................................... 112 [3.30] The right to appeal conviction and sentence ................................................................. 113 [3.40] What is a conviction? ......................................................................................................... 114 [3.50] What is a sentence? ............................................................................................................ 114 [3.60] Nature of the appeal hearing ............................................................................................ 114 [3.70] Disposition powers of the appellate court ..................................................................... 115 [3.80] Disposition powers on appeals against orders for undertakings, bonds etc ........... 115 [3.90] Unfitness to stand trial ....................................................................................................... 116 [3.100] Right to appeal finding of unfitness to stand trial ..................................................... 117 [3.140] Defence of mental impairment ....................................................................................... 118 [3.180] Appeal supervision order ................................................................................................ 119 [3.190] Appeal against unconditional release ........................................................................... 120 [3.200] Rehearing based on absence of accused ....................................................................... 120 [3.210] Procedure on appeal against conviction or sentence ................................................. 121 [3.310] Warning the appellant and abandonment of appeal ................................................. 126 [3.320] Post-appeal notification ................................................................................................... 127 [3.330] Stay pending appeal ......................................................................................................... 127 [3.340] Appeal abandoned ........................................................................................................... 127 [3.350] Failure to appear ............................................................................................................... 128 [3.360] Pre-sentence reports ......................................................................................................... 128 [3.370] Appeal to Court of Appeal against imposition of detention by appellate court .. 129 [3.410] Case stated by County Court on appeal ...................................................................... 130 [3.440] DPP reference to Court of Appeal ................................................................................. 131 [3.450] DPP appeals against leniency of sentence ................................................................... 132 [3.510] DPP appeal sentence: breach of undertaking to assist authorities .......................... 134 [3.570] Appeal to Supreme Court on a question of law ......................................................... 136 [3.580] Judicial review ................................................................................................................... 136 [3.590] Costs .................................................................................................................................... 137 [3.600] Sample forms ..................................................................................................................... 138

Introduction [3.10] This chapter sets out the law governing appeals and other applications from the Children’s Court of Victoria. This includes appeals against conviction, appeals against sentence, and appeals by the Director

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of Public Prosecutions (DPP). In general, the laws governing appeals and other applications are contained in Pt 5.4 of Ch 5 of the Children, Youth and Families Act 2005 (Vic) (hereafter “CYFA”), not the Criminal Procedure Act 2009 (Vic).1

Criminal jurisdiction of the Children’s Court [3.20] The Children’s Court is a specialist court with jurisdiction to deal with criminal matters and “protection” matters.2 The Children’s Court is largely governed by the provisions of the CYFA. The Children’s Court has criminal jurisdiction over children who, at the time of the alleged offence, were of, or over, 10 years of age, but under the age of 18 years at the time of the court hearing.3 The court has no criminal jurisdiction if the child was aged 19 or over at the time proceedings were commenced in the Children’s Court.4 If the accused has turned 19 before or during the hearing of the case, but was a child at the time of the alleged offence, then the court must continue to hear the case unless the court thinks there are exceptional circumstances, in which case the matter must be transferred to the Magistrates’ Court of Victoria.5 The Children’s Court has jurisdiction in regard to all summary offences and all indictable offences except for murder, attempted murder, manslaughter, child homicide, defensive homicide, arson causing death, and culpable driving causing death.6 The Children’s Court can also conduct a committal proceeding. If the charge is an indictable offence, other than those excluded, then the child must first consent to the Children’s Court hearing the matter.7 Alternatively, the court can refuse to hear the indictable offence if the court thinks that “the charge is unsuitable by reason of exceptional circumstances” to be heard 1 Other Acts could authorise an appeal from the Children’s Court, in which case the appropriate provision of the CYFA will apply to those appeals: CYFA s 430G. 2 The CYFA creates a Criminal Division (including the Koori Court) and a Family Division of the court. For a detailed account of the operation of the Children’s Court, see the set of detailed notes prepared by Magistrate Peter Power on the court’s website under “Research Materials”: see http://www.childrenscourt.vic.gov.au (accessed 22 July 2016). For a detailed account of sentencing in the Children’s Court, see A Freiberg, Freiberg and Fox’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) Ch 16. 3 CYFA s 3(a). 4 CYFA s 3(a). 5 CYFA s 516(5). 6 CYFA s 516(1). The Children’s Court has jurisdiction to hear and determine offences against Commonwealth law pursuant to s 20C(1) of the Crimes Act 1914 (Cth) and the Judiciary Act 1913 (Cth) s 68. As a consequence of s 68 of the Judiciary Act 1903 (Cth), appeals in Commonwealth matters will also be governed by provisions in the CYFA and any other relevant Victorian laws. 7 CYFA s 356(3).

[3.30]

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summarily.8 If the court refuses to hear the case summarily, then the court must conduct a committal proceeding into the charge. Under the CYFA s 528(1) the Children’s Court has the same powers and authority as the Magistrates’ Court unless the contrary intention appears in the CYFA. Criminal cases are heard by a magistrate or the President of the Children’s Court, who is a County Court judge.9 The President of the Court will in general hear the more serious and complex matters, particularly matters involving difficult questions of law. Appeals from a decision of the President of the Court must be heard by the Trial Division of the Supreme Court since a County Court judge could not hear an appeal from the decision of another County Court judge (that is, the President of the Children’s Court).10 This distinction creates a degree of complexity for appeals. For the purposes of this chapter, “appellate court” means the County Court and the Trial Division of the Supreme Court.

The right to appeal conviction and sentence [3.30]

Section 424 of the CYFA states:

A person convicted of an offence by the Children’s Court in a summary proceeding in the Criminal Division may appeal to the County Court or, if the Children’s Court was constituted by the President, to the Trial Division of the Supreme Court against – (a) the conviction and sentence imposed by the Children’s Court; or (b) sentence alone.

The appeal is of right. The appellant is not required to obtain leave of the appellate court. There is no provision for an appeal against conviction alone. Under s 430ZB of the CYFA if the appellant is a child under the age of 15, the appeal may be brought on the child’s behalf and in the name of the child by the child’s parent or, in the absence of the parent, the Secretary to the Department of Human Services.11 8 CYFA s 356(3)(b). 9 CYFA s 508(2). 10 A single judge of the Trial Division hears the appeal. There are, however, very few appeals from decisions of the President of the Children’s Court. See, eg, R v BD [2008] VSC 333; H v Rowe [2008] VSC 369 and R v MS [2009] VSC 239.The New South Wales Law Reform Commission has recently recommended abolishing this distinction on the basis that having two separate avenues of appeal, depending upon which judicial officer hears the case, is anomalous and creates inconsistency: see New South Wales Law Reform Commission, Criminal Appeals, Report 140 (June 2014) at [12.8]. 11 Section 3 of the CYFA defines “secretary” to mean the Head of “the Department”. The “Department” is then defined as the Department of Human Services.

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[3.40]

What is a conviction? [3.40] Under s 3(1) of the CYFA a “conviction” includes a finding of guilt whether or not a conviction is recorded. Upon a finding of guilt, the Children’s Court has a discretion to record a conviction or not, depending upon the sentence imposed.12 This recognises that the recording of a conviction can in itself constitute a form of punishment.

What is a sentence? [3.50]

Under s 3(1) of the CYFA a sentence includes:

(a) the recording of a conviction; and (b) an order made under Part 5.3, other than – (i) an order incidental to or preparatory to the making of the order; or (ii) an order granting bail made under section 420; and (c) an order made under section 11 of the Sex Offenders Registration Act 2004; and (d) an order made under section 84S or 84T of the Road Safety Act 1986.13

Under s 104A of the Sentencing Act 1991 (Vic) a magistrate can correct minor, technical errors in a sentence such as a clerical error, an accidental slip or a defect in form. Under s 104B of the Sentencing Act 1991 (Vic) where the court has imposed a sentence that is contrary to law, a magistrate can re-open proceedings and correct the error. A sentence is not contrary to law just because the decision to impose it was reached by a faulty process of reasoning or factual error.

Nature of the appeal hearing [3.60]

Section 426 of the CYFA states:

(1) An appeal under section 424 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Children’s Court. (2) On the hearing of an appeal under section 424, the appellate court – (a) must set aside the sentence of the Children’s Court; and (b) subject to this section, may impose any sentence which the appellate court considers appropriate and which the Children’s Court imposed or could have imposed; and (c) may exercise any power which the Children’s Court could have exercised.

The meaning of “rehearing” is discussed further in Chapter 1 at [1.840]. The term “rehearing” in this context means the hearing is a de novo appeal – that is, the appeal is heard afresh.14 If the appeal is against 12 CYFA s 360 sets out all the various sentences available with or without the recording of a conviction. For further discussion, see A Freiberg, Freiberg and Fox’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) p 83 and [1.265]. 13 Part 5.3 of the CYFA sets out all the sentences available to the Children’s Court. 14 Neill v County Court of Victoria (2003) 40 MVR 265; [2003] VSC 328 at [12]–[15] and Humphries v Poljak [1992] 2 VR 129 at 139. In H v Rowe [2008] VSC 369 Forrest J described the appeal as a hearing de novo, referring to Humphries v Poljak [1992] VR 129.

[3.80]

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conviction, the informant must prove the case afresh. The appellant can change his or her original plea and adduce new evidence. The appellate court must set aside the sentence imposed by the Children’s Court.15 This has the effect that the Children’s Court is functus officio in respect to the case. The appellate court has no power to remit the case back to the Children’s Court. On the hearing of the appeal by the Trial Division of the Supreme Court, the Supreme Court can require the Children’s Court to provide the original depositions, exhibits, the indictment, and details of any plea.16

Disposition powers of the appellate court [3.70] The appellate court possesses all the powers of the Children’s Court. If the appeal against conviction is successful and the appellant is found not guilty, then the appellate court can enter a verdict of acquittal. If the appeal is against sentence, then under s 426(2) of the CYFA the appellate court can impose any sentence which the court thinks is appropriate and the Children’s Court could have imposed that sentence. Under s 426(5) of the CYFA any sentence imposed by the appellate court is to be regarded as a sentence of the appellate court, not a sentence of the Children’s Court. Under s 426(4) of the CYFA the appellate court can backdate any sentence it imposes to a date not earlier than the date of the sentence imposed by the Children’s Court.

Disposition powers on appeals against orders for undertakings, bonds etc [3.80] If the appellant appeals against an order imposed under the CYFA s 363, 365 or 367 (that is, non-accountable undertakings, accountable undertakings, and good behaviour bonds) then under s 426(6) of the CYFA the appellate court may: (a) dismiss the charge against the appellant; or (b) make an order in the same terms as the order of the Children’s Court – But must not impose any other sentence.

Section 426(6) of the CYFA reflects the fact that the original offences must have been relatively minor for the court to impose such sentences (or there were extenuating circumstances regarding the offender or the offence), and for an appellate court to impose a higher sentence in these circumstances would be unfair to the appellant. The appellate court can impose a probation order, a youth supervision order or a youth attendance order even though the appellant is aged 19, 15 CYFA s 426(2)(a). 16 Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 3B.11.

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but under 21.17 The significance of this power is that if the appellant is aged 19 at the time of the appeal, then he or she is no longer a “child” as defined by the CYFA s 3, and thus these orders would not otherwise be available.

Unfitness to stand trial [3.90] Prior to amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (hereafter “CMIUTA”) in 2014, the Children’s Court (and the Magistrates’ Court) had no jurisdiction to determine if the accused was unfit to be tried.18 However, following recommendations of the Victorian Law Reform Commission in its 2014 report, the Children’s Court was given jurisdiction to deal with the issue of fitness to stand trial in respect to indictable offences.19 The procedures for dealing with the issue of fitness to stand trial are complex and beyond the scope of this book. The following is intended to be a summary of the specific steps involved in the Children’s Court. If it appears to the court that there is a “real and substantive” question as to the fitness of the accused to stand trial, the court must reserve that question for investigation.20 The current proceedings are adjourned to enable the investigation to commence. The investigation must be held as soon as possible. Pending the investigation, the court can grant bail or remand the child in custody and order medical examination of the child.21 In conducting the investigation, the court hears submissions from the defence and the prosecution and may call evidence on its own initiative.22 If the court determines the child is fit to stand trial, the trial resumes in the normal manner.23 If the court determines the child is unfit to stand trial, then the court determines if the child is likely to become fit within the next six months.24 If the court determines the child is not fit, but is likely to become fit by a specified date within six months, then the case is 17 CYFA s 426(9). 18 This was confirmed by Lasry J in CL (a minor) v Lee (2010) 29 VR 570; [2010] VSC 517 at [46]. The Victorian Court of Appeal subsequently held that Lasry J was correct in his analysis: see CL (a minor by his Litigation Guardian) v DPP [2011] VSCA 227. A person is unfit to stand trial if he or she is unable to understand the nature of the charge, or to enter a plea, or to understand the nature of the hearing, or is unable to give instructions: CMIUTA s 38K(1)). 19 See Victorian Law Reform Commission, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), Consultation Paper No 17 (2013) and Consultation Paper No 19 (2013), and Final Report (2014) p 181 at [6.52]. A new Pt 5A has been added to the CMIUTA. Part 5A sets out the jurisdiction and procedures for the issue of fitness to stand trial in the Children’s Court. Section 5A(1) of the CMIUTA gives the Children’s Court jurisdiction to deal with fitness to stand trial and mental impairment. 20 CMIUTA s 38N(1). 21 CMIUTA s 38P. 22 CMIUTA s 38Q(1). 23 CMIUTA s 38R(3). 24 CMIUTA s 38Q(3).

[3.120]

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adjourned to that date.25 If the court determines the child is not likely to become fit within the six-month period, the court must hold a “special hearing”.26 At the special hearing, the court determines if the child: (a) is not guilty of the offence; (b) is not guilty because of mental impairment; or (c) committed the offence (or an alternative offence).27 The special hearing is conducted as a conventional hearing of criminal charges. If the court finds the child committed the offence, the court must then declare the child is liable to supervision, or order the child to be released unconditionally.28

Right to appeal finding of unfitness to stand trial [3.100]

Section 38U(1) of the CMIUTA states:

In a criminal proceeding in the Children’s Court, if a question has arisen as to whether a child is unfit to stand trial and on an investigation under this Division the Children’s Court finds that the child is unfit to stand trial, the child may appeal to the County Court or, if the Children’s Court was constituted by the President, to the Trial Division of the Supreme Court against the finding on any ground.

Test for determining appeal against finding of unfitness [3.110] Under s 38U(6) of the CMIUTA the appellate court must allow the appeal if the child satisfied the court that: (a) the finding of unfitness to stand trial is unreasonable or cannot be supported having regard to the evidence; or (b) the Children’s Court made a material error of law; or (c) for any other reason the appellate court considers that the decision should not stand.

Disposition powers if appeal successful [3.120] Pursuant to s 38U(8) of the CMIUTA if the appeal is allowed, the court must set aside the finding of unfitness, and either: (a) refer the matter to the Children’s Court for a hearing and determination of the offence charged against the child; or (b) remit the matter for a rehearing of the investigation under this Division as to whether the child is fit to stand trial. 25 CMIUTA s 38R(2). 26 CMIUTA s 38R(3). 27 CMIUTA s 38V. If the child is found not guilty, that finding is the same as if found not guilty at a normal contest: CMIUTA s 38Y(1). If the child is found not guilty because of mental impairment, that finding is the same as a finding of not guilty because of mental impairment at a normal contest (CMIUTA s 38Y(2), and if the child is found not guilty, that finding constitutes a qualified finding of guilt but is not a basis for a conviction: CMIUTA s 38Y(3). 28 CMIUTA s 38Y(4).

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If the case is remitted, the appellate court can give any required directions concerning the scope and manner of the rehearing.29 Under s 38U(9) of the CMIUTA if the appellate court allows the appeal but considers that the child is unfit to stand trial, the appellate court may affirm the finding and refer the matter to the Children’s Court. Procedure for appeal against finding of unfitness [3.130] The notice of appeal is filed with any venue of the Children’s Court within 28 days and served on the respondent within seven days of filing.30 When the appeal is to be heard by the Supreme Court, Form 6-3CA is used.31 When the appeal is to be heard by the County Court, Form 4A is used.32 The Children’s Court then transmits the notice to the appellate court.

Defence of mental impairment [3.140] The defence of mental impairment is recognised in the Children’s Court.33 In general, the defence of mental impairment means that at the time of the offence, the accused did not know his or her conduct was wrong, and if the defence is made out, the accused must be found not guilty on the ground of mental impairment.34 If the child is found not guilty because of mental impairment of an indictable offence heard summarily, the court must declare the child is liable to a supervision order, or the child must be released unconditionally.35 Right to appeal finding of mental impairment [3.150] If the Children’s Court finds that the child was mentally impaired at the time of the offence, the child can appeal that finding to the County Court or, if the decision was made by the President of the 29 CMIUTA s 38Y. 30 CMIUTA s 38U(2). 31 Supreme Court (Criminal Procedure) Rules 2008 r 3C.02. 32 County Court Criminal Procedure Rules 2009 r 4.02(1A). 33 Prior to 2014, whilst the defence of mental impairment was available in the Children’s Court, the court had no power to make a supervision order. The Victorian Law Reform Commission subsequently recommended that the Children’s Court be given a power to make a supervision order following a finding of not-guilty because of mental impairment: see Victorian Law Reform Commission, Crimes (Mental Impairment and Unfitness to be Trial) Act 1997 (Vic), Final Report (2014) at 6.52. Division 4 of the CMIUTA recognises the defence of mental impairment. 34 Under s 38ZA(1) of the CMIUTA the defence of mental impairment means that the accused can submit that at the time of the offence, he or she was suffering from a mental impairment which had the effect that he or she: (a) did not know the nature and quality of their conduct; or (b) did not know that the conduct was wrong (ie could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong). If the court is satisfied of this, then the accused must be found not guilty because of mental impairment. 35 CMIUTA s 38ZD.

[3.180]

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Children’s Court, to the Trial Division of the Supreme Court.36 For the County Court, Form 4A is used.37 The appeal can be on any ground. Test for determining appeal against finding of mental impairment [3.160] Under s 38ZE(6) of the CMIUTA, at the hearing of the appeal the appellate court must allow the appeal if satisfied that: (a) the finding of the Children’s Court is unreasonable or cannot be supported having regard to the evidence; or (b) as a result of an error or an irregularity in, or in relation to, the hearing, there has been a substantial miscarriage of justice; or (c) for any other reason there has been a substantial miscarriage of justice.

These are essentially the same criteria applicable to an appeal against conviction following a jury trial in the higher courts, as discussed in Chapter 6.38 This similarity reflects consistency in the overall system of appeals in Victoria. Disposition powers on hearing appeal [3.170]

Under s 38ZE(9) of the CMIUTA, if the appellate court:

(a) allows an appeal under subsection (1) on a ground that the finding of not guilty because of mental impairment ought not to stand; and (b) considers that the proper finding would have been guilty of an offence, whether the offence charged or an offence available as an alternative verdict – the appellate court must substitute for the finding a finding of guilty of that offence and may make any order, or exercise any power, that the Children’s Court could have made or exercised. Alternatively, if the appellate court allows the appeal, then under s 38ZE(1) of the CMIUTA it must set aside the finding and either – (a) enter a finding of not guilty of the offence charged; or (b) order a new trial.39

Appeal supervision order [3.180] Under CMIUTA s 38ZJ(1) where, following a special hearing, the court declared the child liable to supervision, and a supervision order was made, the child can appeal the imposition of the supervision order. For the Supreme Court, Form 6-3CD is used,40 while for the County Court, the appropriate form is Form 4A.41 36 CMIUTA s 38ZE. 37 County Court Criminal Procedure Rules 2009 r 4.02(1A). 38 Pursuant to the Criminal Procedure Act 2009 (Vic) s 276(1). 39 If the appellate court orders a new trial, under s 38ZE(11) the child can be remanded in custody or granted bail. 40 Supreme Court (Criminal Procedure) Rules 2008 r 3C.05. 41 County Court Criminal Procedure Rules 2009 r 4.02(1A).

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The DPP, the Attorney-General, the Secretary to the Department of Human Services, or the Secretary to the Department of Health can also appeal a supervision order if he or she thinks a different supervision order should have been made, and the appeal is in the public interest.42 For the Supreme Court, Form 6-3CE is used43 and, for the County Court, Form 4BA.44

Appeal against unconditional release [3.190] Under CMIUTA s 38ZF(1), where, following a special hearing, the court decides to unconditionally release the child (under CMIUTA s 38ZD(1)(b)), the DPP may appeal the decision. Such an appeal should not be commenced unless the DPP considers the order should not have been made and that the appeal is in the public interest.45 The notice of appeal must be signed personally by the DPP and be filed in any venue of the Children’s Court. A copy of the notice is then served on the child within seven days. For the Supreme Court, the appropriate form is Form 6-3CC while46 for the County Court Form 4BA is used.47 On hearing the appeal the appellate court can either confirm the order or set it aside and order that the child is liable to supervision.48

Rehearing based on absence of accused [3.200] Under CYFA s 344B(1) the informant can apply for an extension of time in which to commence proceedings for a summary offence.49 A copy of the application must be filed and served on the child:50 Form 4 is used. If the application is granted, the court can extend the time for commencing the proceedings.51 While the child is entitled to be present at the hearing of the application, the court can nevertheless make the order for an extension of time in the absence of the child.52 Under CYFA s 344D(1) if the child was not present at the hearing of the application, he or she can apply to the court for an order that the original orders be set aside and the application reheard. If a sentence is imposed on a child in his or her absence, it appears that pursuant to s 528(2) of the CYFA, s 88 of the Criminal Procedure Act 2009 42 CMIUTA s 38ZJ(2). 43 Supreme Court (Criminal Procedure) Rules 2008 r 3C.06. 44 County Court Criminal Procedure Rules 2009 r 4.03.1. 45 CMIUTA s 38ZF(1). 46 Supreme Court (Criminal Procedure) Rules 2008 r 3C.04. 47 County Court Criminal Procedure Rules 2009 r 4.03.1. 48 CMIUTA s 38ZF(8). 49 For summary offences the charge sheet must be filed within six months from the date of the alleged offence: CYFA s 344A(1). For indictable offences there is no time limit: CYFA s 344A(2). 50 CYFA s 344B(4). 51 CYFA s 344C(1). 52 CYFA s 344C(3).

[3.220]

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(Vic) would apply so as to give the child a right to apply for a rehearing.53 Section 88 of the CPA is discussed in Chapter 4 at [4.90].

Procedure on appeal against conviction or sentence [3.210] The following flowchart summarises the procedure for appeals against conviction and sentence.

Notice of appeal [3.220] The appeal is commenced by filing a notice of appeal with a Registrar at any venue of the Children’s Court within 28 days from the date of the sentence.54 Order 3.02 of the Children’s Court Criminal Procedure Rules 2009 sets out the duties of the Children’s Court Registrar upon the filing of a notice to appeal, or an application for leave to appeal. 53 No specific form is available so the general Form 6 is used. 54 CYFA s 425(1).

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[3.230]

The appeal notice must be in the form prescribed by the appellate court. The notice must state whether the appeal is against conviction and sentence or sentence alone, and must include an undertaking by the appellant to appear on the appeal and prosecute the appeal.55 If more than one sentence is being appealed then the one notice of appeal will suffice.56 The County Court Criminal Procedure Rules 2009 apply to such an appeal pursuant to r 4.01(a) and r 4.02(1) prescribes that Form 4A is to be used for the notice. Under O 4 of those rules, the notice of appeal must be signed by the appellant in the presence of the Registrar of the Children’s Court (or, if the appellant is in detention, in the presence of a prison officer or police officer).57 The Registrar of the County Court then sets a date and place for the hearing of the appeal and notifies each party.58 Where the Trial Division of the Supreme Court hears the appeal, the Supreme Court (Criminal Procedure) Rules 2008 apply. Order 3B of those rules sets out the procedure for the notice to appeal, the fixing of a hearing date and the recording of the decision. For the Supreme Court, Form 6-3BA is used.59 The lawyer acting for the appellant must notify the Prothonotary of that fact:60 r 3B.03. The Prothonotary then fixes a date and place for the hearing and notifies each party.61 Service of notice of appeal [3.230] A copy of the notice must be served on the respondent within seven days of the notice being filed.62 Appeal out of time [3.240] If the appeal is filed outside the 28-day period, the appeal is deemed to be an application for leave to appeal (out of time) on grounds which must be stated in the notice of appeal.63 The appellate court hearing the appeal may grant leave to appeal if satisfied the failure to file the notice within time was due to exceptional circumstances, and that the respondent’s case would not be materially prejudiced because of the delay.64 55 CYFA s 426(4). 56 CYFA s 430F. 57 County Court Criminal Procedure Rules 2009 r 4.02. 58 County Court Criminal Procedure Rules 2009 r 4.04. 59 Supreme Court (Criminal Procedure) Rules 2008 r 3B.02. 60 Supreme Court (Criminal Procedure) Rules 2008 r 3B.03. 61 Supreme Court (Criminal Procedure) Rules 2008 r 3B.04. 62 CYFA s 425(2). 63 CYFA s 430. 64 CYFA s 430(1).

[3.260]

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If leave to appeal is refused, the appeal must be struck out.65 If the appeal is struck out, the original sentence imposed by the Children’s Court is reinstated.66 Bail pending appeal [3.250] If the appellant is in custody as a result of the original sentence, he or she can make application to the Children’s Court to be bailed pending the appeal (“appeal bail”).67 The appellant must give reasonable notice to the respondent.68 On the hearing of the bail application, Div 1 of Pt 5.2 of the CYFA applies as if the appellant were a child taken into custody. This means that the ordinary principles of bail for a child (under the Bail Act 1977 (Vic)) will apply.69 Further application for bail where bail refused or revoked [3.260] Under the Bail Act 1977 (Vic) (“BA”) s 18 an accused person who has been refused bail and is in custody may subsequently make a further application for bail. A further application for bail is not an “appeal”, but rather a right to make successive applications for bail.70 (This would also apply to a person who has been arrested and brought before a magistrate or a bail justice and bail has been refused, or where a person’s bail has been revoked.) The further application for bail is made using Form 11 of the Bail Act Regulations 2012. If the charge is murder or treason, the application can only be made to the Supreme Court. For other charges, the application is made to the court where the accused is remanded to appear. In the case of a person appealing from the Children’s Court, the further application is made to the appellate court. However, under BA s 18AA(1) the court must not hear the renewed application unless: (a) the applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail; or (b) the applicant was not represented by a legal practitioner when bail was refused or revoked; or (c) the order refusing or revoking bail was made by a bail justice. 65 CYFA s 430(3). 66 CYFA s 430(5). 67 CYFA s 430B(1). For a more detailed account, see G Hampel, D Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2014) pp 89–90. 68 CYFA s 430B(1)(b). 69 See G Hampel, D Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2014) pp 89–90. 70 Beljajev v DPP (unreported, Vic Sup Ct FC, 8 August 1991). At common law an appeal regarding bail is a foreign concept.

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[3.270]

The concept of “new facts or circumstances” has been considered in a number of cases.71 The phrase is broad and can take into account a plethora of fresh considerations such as delay, ill-health and the availability of support services. An application under s 18 is to be conducted as a rehearing of whether bail should be granted, rather than a strict appeal to determine if an error was made in the original decision.72 Appeal to Supreme Court against refusal of bail [3.270] In addition to BA s 18, the Supreme Court has an inherent jurisdiction to grant bail to persons awaiting trial.73 This is recognised in BA ss 18AA(2) and 18AH.74 It is not uncommon for the Supreme Court to hear an appeal by a child against the refusal of a magistrate to grant bail.75 The Supreme Court of Victoria Practice Note No 5 of 2004 sets out the procedure to be adopted. First, a Notice of Intention to apply for bail must be prepared and supported by an affidavit setting out the facts to be relied on in the application. A copy of the application and affidavit must then be served on the DPP who can then prepare prosecution submissions. In urgent cases, however, Practice Note No 5 of 2004 can be waived.76 The application for bail is filed with the Prothonotary and should include all the information required by O 27 of Ch 1 of the Supreme Court (General Civil Procedure) Rules 2015. If the DPP consents to bail being granted, the judge can make an order to that effect without the parties having to attend the hearing. The right of an accused to make a further application for bail after the Supreme Court has determined an appeal regarding bail is unclear.77 If bail is ultimately refused, the appellant will remain in custody pending the hearing of the appeal. 71 See, eg, Re Application for Bail by Foxwell (No 2) [2014] VSC 145; R v Robert Vincent Holt (unreported, Vic Sup Ct, Marks J, 19 June 1984); Mokbel v DPP [2002] VSC 127; Beljajev v DPP (unreported, Vic Sup Ct FC, 8 August 1991). 72 BA s 18AB. In Beljajev v DPP (unreported, Vic Sup Ct FC, 8 August 1991) the Court of Appeal distinguished between the right to “appeal” a bail decision and the right of an accused to make successive applications for bail: at p 22. 73 R v Durose [1991] 1 VR 176; Dixon v DPP [2009] VSC 224. Section 18AA(2) of the BA states: “Nothing in this section derogates from the right of a person in custody to apply to the Supreme Court for bail.” 74 See Supreme Court of Victoria, Practice Note No 5 of 2004. 75 See, eg, Re Application for Bail by RL [2014] VSC 336 (11-year-old child); Re Application for Bail by RS [2013] VSC 350; and Re NT [2014] VSC 381. 76 G Hampel, D Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) p 115, referring to AW v The Queen [2013] VSC 56. 77 G Hampel, D Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) p 77.

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Application for variation of bail [3.280] Both the accused person and the informant or Director of Public Prosecutions may apply to vary the amount of bail or the conditions of bail.78 Where the applicant is the accused, the application is made using Form 11 of the Bail Act Regulations 2012 (and Form 11A for the notice to the informant). Form 12 is the appropriate form to be used by the informant or the DPP. If the charge is murder or treason the application is made to the Supreme Court and, in all other cases, to the court where the accused was bailed to appear. If bail was granted by a bail justice or a magistrate, and within 24 hours the accused is unable to comply with bail conditions, then the accused can apply to the bail justice or the magistrate to vary bail.79 Apart from the Bail Act 1977 s 18AC, the Supreme Court has an inherent jurisdiction to vary bail that has been imposed by a magistrate or the County Court.80 DPP may appeal against decision to grant bail [3.290] Under BA s 18A the DPP may appeal to the Supreme Court against an order granting bail if (a) the DPP is satisfied that: (i) the conditions of bail are insufficient; or (ii) the decision to grant bail contravenes the Bail Act 1977 (Vic); and (b) the DPP thinks it is in the public interest to appeal. This right extends to the Commonwealth DPP.81 The DPP must provide to the respondent a copy of the notice of appeal and any sureties within one month from the date bail was granted.82 The appeal is heard by a single judge of the Trial Division of the Supreme Court. On the appeal, if the Supreme Court thinks that a different order should have been made, the court must set aside the original order and “conduct a fresh hearing” in relation to the grant of bail.83 If the respondent is not present at the appeal, the court can issue an arrest warrant. In DPP (Cth) v Barbaro (2009) 20 VR 717 at [10] the Court of Appeal stated that in determining an appeal under BA s 18A it is not essential that the DPP demonstrate error in the original decision. It is open to the DPP to establish that the original decision to grant bail was manifestly wrong, without pointing to any specific error made: In other words the Director is not, in our opinion, confined to relying upon an error of law as the ground of appeal but may succeed if he shows that on any 78 BA s 18AC. 79 BA s 18AC(4) 80 R v Barrett [1959] VR 458; and BA s 18AH. 81 Beljajev v DPP (unreported, Vic Sup Ct FC, 8 August 1991). See also Crimes Act 1914 (Cth) s 15AA(3A) and G Hampel, D Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) p 121. 82 BA s 18A(2). 83 BA s 18A(6).

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ground, whether of fact or law, discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made.

However, the court also noted that the decision to grant bail is a matter of “practice and procedure” and this operates as a severe constraint on an appellate court. For this reason the appellate court will usually be reluctant to interfere with the original decision. If the DPP or the respondent is not satisfied with the decision of the single Supreme Court judge, then the DPP or the respondent can appeal that decision to the Court of Appeal.84 Revocation of bail [3.300] Under BA s 18AE, the DPP can apply to a court to revoke a person’s bail. The application is made using Form 13 of the Bail Act Regulations 2012. Under BA s 18AG if the court refuses to revoke bail, the DPP can appeal that decision to the Supreme Court. If a person who was on bail has been arrested for breaching bail, he or she can be taken before a bail justice, or a court which can then revoke bail.85 If the court refuses to revoke bail, the DPP can appeal that decision to the Supreme Court.86

Warning the appellant and abandonment of appeal [3.310] On the hearing of the appeal, the appellate court must warn the appellant (as early as possible during the hearing) that he or she faces the possibility that a more severe sentence than originally imposed by the Children’s Court could be imposed by the appellate court.87 This is to give the appellant the opportunity to abandon the appeal if it becomes clear the appeal is very unlikely to be successful and there is a real chance a heavier sentence will be imposed. Failure to provide the warning could constitute a breach of natural justice and be grounds to void the appeal.88 If, as a result of the warning, the appellant abandons the appeal, then the County Court judge must “strike out” the appeal.89

84 BA s 18A(12). This section implements the decision in Fernandez v DPP (2002) 5 VR 374. The Court of Appeal will in general be reluctant to interfere with the decision of the trial judge as a bail decision is a matter of practice and procedure: Dale v DPP [2009] VSCA 212 and YSA v DPP (2002) 133 A Crim R 368; [2002] VSCA 149. 85 BA s 24. 86 BA s 24(4). 87 CYFA s 426(3). In NSW this is known as a “Parker direction”: Parker v DPP (1992) 28 NSWLR 282. 88 Firth v County Court of Victoria [2014] VSC 448 at [50]. 89 CYFA s 430C(6). If the appeal is struck out, “the sentence of the Children’s Court is reinstated and may be enforced as if an appeal had not been made”: CYFA s 430C(7). The original sentence of the Children’s Court, set aside at the commencement of the appeal, is reinstated.

[3.340]

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Post-appeal notification [3.320] If the appeal is heard by the Supreme Court, the Prothonotary notifies the appellant, the DPP, the Superintendent of the detention centre where the appellant is detained (if applicable), the Secretary of the Department of Justice, and the Children’s Court of the result of the appeal.90 It should be noted the Children’s Court cannot issue a certificate of conviction until 35 days after the Supreme Court has determined the appeal.91 If the appeal is heard by the County Court, the County Court Registrar records the result of the appeal and forwards the relevant notice (Form 4F) to the parties. When the appeal is determined, the Associate to the judge who heard the appeal must record the sentence and any decision in Form 6-3BB and that record constitutes the final record of the Supreme Court on the appeal.92 The Associate then gives three copies of the record to the Prothonotary, who files a copy, sends a copy to the Registrar of the Children’s Court and, if the appellant is in detention, serves a copy on the person responsible for the appellant’s detention.93

Stay pending appeal [3.330] If the appellant appeals against sentence and is not in custody, the appeal operates as a stay of the sentence.94 If the appellant is in custody, the appeal operates as a stay of the sentence if the appellant is granted bail under CYFA s 430B; otherwise the sentence is not stayed.95

Appeal abandoned [3.340] The appellant can abandon the appeal by filing a notice of abandonment with the appellate court.96 If the appeal is to be heard in the Supreme Court then the notice of abandonment must be in Form 6-3BE97 and the written notice (under CYFA s 430C(3)) is in Form 6-3BF. Upon the notice being filed, the Prothonotary makes an order striking out the appeal. 90 Supreme Court (Criminal Procedure) Rules 2008 r 3B.12; Form 6-3B1. 91 Supreme Court (Criminal Procedure) Rules 2008 r 3B.13. 92 Supreme Court (Criminal Procedure) Rules 2008 r 3B.05. 93 Supreme Court (Criminal Procedure) Rules 2008 r 3B.05. 94 CYFA s 430A. Subject to the Road Safety Act 1986 s 29. 95 CYFA s 430A. Section 430X(1) of the CYFA states that a sentence is not stayed during the appeal period unless this Act or another Act otherwise provides or an order is made under subsection (2). Subsection (2) states that on an appeal under CYFA s 430S the Court of Appeal may stay a sentence. 96 CYFA s 430C(1). 97 Supreme Court (Criminal Procedure) Rules 2008 r 3B.08.

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[3.350]

If the appeal is to be heard in the County Court, the notice must be in Form 4C.98 But if the appellant wishes to abandon the appeal against conviction but continue the appeal against sentence then the appropriate form for the County Court is Form 4D.99 Under s 430C(6) of the CYFA, if the appeal is abandoned the appellate court “must strike out the appeal” and, under s 430C(6A), “may not set aside an order under subsection (6)”. If the appeal is struck out: (a) the sentence of the Children’s Court is reinstated and may be enforced as if an appeal had not been made but, for the purposes of any enforcement of any penalty, time is deemed not to have run during the period of any stay.100

Failure to appear [3.350] If the appellant fails to appear on the appeal, the appellate court can either strike out the appeal or adjourn the proceedings (that is, to give the appellant an opportunity to continue with the appeal).101 If the appeal is heard in the Supreme Court, the order striking out the appeal is in Form 6-3BG.102 If the appeal is struck out, and the appellant had originally received a period of detention in a youth residential centre or a youth detention centre, and is on bail, the court can issue a warrant to detain the appellant in the relevant centre.103 The appellant can apply to have the order striking out the appeal set aside.104 An application to set aside an order striking out the appeal in the Trial Division of the Supreme Court uses Form 6-38H, and in the County Court Form 4E.105

Pre-sentence reports [3.360] If the appellate court finds the appellant guilty, the court can order that the Secretary to the Department of Human Services or the Secretary to the Department of Justice provides a pre-sentence report and the author of the report can be compelled to attend the appellate court.106 98 County Court Criminal Procedure Rules 2009 r 4.05. See also County Court Criminal Division Practice Note 2015 Pt 30. 99 County Court Criminal Procedure Rules 2009 r 4.06. 100 CYFA s 430C(7). 101 CYFA s 430D(1). 102 Supreme Court (Criminal Procedure) Rules 2008 r 3B.09. 103 CYFA s 430D(1A). 104 Form 6-3-BH (Supreme Court (Criminal Procedure) Rules 2008 r 3B.10) and, for the County Court, Form 4E: County Court Criminal Procedure Rules 2009 r 4.07. 105 County Court Criminal Procedure Rules 2009 r 4.07. 106 CYFA s 430I.

[3.380]

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If sentencing has been deferred to enable the appellant to attend a group conference, then a group conference report must be provided.107

Appeal to Court of Appeal against imposition of detention by appellate court Right to appeal [3.370] Under s 430R of the CYFA if the defendant was sentenced by a County Court judge or a Supreme Court judge to a term of detention following an appeal under CYFA s 426 (appeal by defendant), s 429 (DPP appeal against sentence) or s 429C (DPP appeal against sentence), but the defendant had not originally been sentenced to detention by the Children’s Court, then the defendant can appeal to the Court of Appeal if he or she is given leave to appeal by that court.108 The notice of appeal (Form 6-2C) must be filed within 28 days of the sentence of the appellate court and the Registrar of Criminal Appeals of the Supreme Court must provide a copy to the respondent.109 Note this additional right to appeal does not arise if the offender had been sentenced to a term of detention by the Children’s Court and the appellate court simply increased the term of detention. Test to determine appeal under s 430R [3.380] At the hearing, the Court of Appeal must allow the appeal if the appellant satisfies the court there is an error in the sentence and a different sentence should have been passed, otherwise the Court of Appeal must dismiss the appeal.110 Note there are two limbs to the test to be applied. It is not sufficient for the appellant simply to show an error in the sentence. The appellant must also show that the error is serious enough to justify the imposition of a different sentence. However, if the Court of Appeal is considering imposing a more severe sentence than that imposed by the Children’s Court, then the court must warn the appellant (as early as possible in the appeal hearing) of this possibility.111 On an appeal against sentence by the DPP, this situation could be described as a double breach of the rule against double jeopardy. That is, on the DPP appeal against sentence, the defendant has faced being sentenced again, but on the further appeal to the Court of Appeal, the defendant faces being sentenced again, and possibly to an even more severe sentence.

107 CYFA s 430N. 108 CYFA s 430R. 109 CYFA s 430S. 110 CYFA s 430T(1). 111 CYFA s 430T(3).

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[3.390]

Bail pending appeal under s 430R [3.390] If a person has appealed to the Court of Appeal under s 430R(1), he or she can apply to the Court of Appeal for bail pending the appeal.112 Disposition powers on appeal under s 430R [3.400] If the appeal is allowed, the Court of Appeal must set aside the sentence imposed by the (County Court or Supreme Court) appellate court, and either impose a new sentence that it considers appropriate or remit the matter back to the appellate court with or without directions.113 The Court of Appeal can make a probation order, youth detention order or youth attendance order if the appellant is aged 19 and under 21 years.114

Case stated by County Court on appeal [3.410] Under s 430VA of the CYFA if, on the hearing of an appeal to the County Court or the Trial Division of the Supreme Court from the Children’s Court, a question of law arises, the County Court judge or the Supreme Court judge may reserve the question for determination by the Court of Appeal if the judge thinks “it is in the interests of justice to do so” having regard to: (a) the extent of any disruption or delay to the hearing that may arise if the question of law is reserved; and (b) whether the determination of the question of law may – (i) render the hearing unnecessary; or (ii) substantially reduce the time required for the hearing; or (iii) resolve a novel question of law that is necessary for the proper conduct of the hearing.

Although an interlocutory appeal under s 295 of the Criminal Procedure Act 2009 (Vic) is not available in the Children’s Court, the Case Stated procedure could be categorised as a form of interlocutory appeal in that the application is made to the Court of Appeal before the conclusion of the appeal hearing. In this sense the appeal is not an appeal against a decision of the appellate judge but rather the seeking of an opinion from the Court of Appeal as to what is the correct legal principle in relation to the question of law that was reserved. The purpose of this type of appeal is thus to clarify an important legal principle, which may reduce the time necessary for the original appeal, or indeed dispose of the need for the appeal. Note that any party can request that the judge reserve the question of law, or the judge himself or herself could reserve the question. If the court 112 CYFA s 430Y(1). 113 CYFA s 430U(2). 114 CYFA s 430U(5).

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does reserve the question of law, then the appeal proceedings must be adjourned if it is reasonably practicable to do so.115 Refusal to reserve a question of law [3.420] If the County Court judge or the judge in the Trial Division of the Supreme Court refuses to reserve the question of law, then pursuant to s 430VC of the CYFA the party seeking to have the question reserved can apply to the Court of Appeal seeking an order calling upon the judge and the respondent to “show cause” why the question of law should not be reserved. The Court of Appeal can order the appellate court to reserve the question of law, or can dismiss the application by the aggrieved party.116 The appellate court states a case [3.430] If the appellate court does reserve the question of law then the judicial officer of the appellate court must “state a case”. This means setting out in written form the precise question to be answered by the Court of Appeal and the circumstances in which the question has arisen.117 The judicial officer of the appellate court must personally sign the Case Stated and transmit it to the Court of Appeal. The Court of Appeal then decides the question raised and the Registrar of Criminal Appeals subsequently forwards the opinion to the Children’s Court, which then enters the judgment on the court record.118 An example of a “Case Stated” is DPP v MN; DPP v JC; DPP v JW119. However, in this case the Court of Appeal was considering provisions of the CYFA which have since been reformed.

DPP reference to Court of Appeal [3.440] If a person is acquitted following an appeal to the County Court or to the Trial Division of the Supreme Court, the DPP may refer to the Court of Appeal any “question of law” that arose in those proceedings.120 The Court of Appeal must consider the question raised and provide its opinion.121 If the acquitted person appears at the hearing, then he or she is entitled to costs. Crucially, a DPP Reference does not affect in any way the appeal hearing or the acquittal.122 The purpose of the DPP Reference is to provide 115 CYFA s 430VB. 116 CYFA s 430VC(2). 117 CYFA s 430VD. 118 CYFA s 430VF. 119 (2009) 26 VR 563; [2009] VSCA 312. 120 CYFA s 430W. 121 CYFA s 430W(2). 122 CYFA s 430W(4).

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clarification of a specific legal question and thus serves the broader interests of the administration of justice. A DPP Reference is not an appeal in the true or strict sense of an “appeal”, but this procedure is clearly important for the overall administration of justice in Victoria.

DPP appeals against leniency of sentence Right to appeal [3.450]

Section 427 of the CYFA states:

(1) The DPP may appeal to the County Court or, if the Children’s Court was constituted by the President, to the Trial Division of the Supreme Court against a sentence imposed by the Children’s court in a summary proceeding in the Criminal Division if satisfied that an appeal should be brought in the public interest. (2) The DPP must not bring a further appeal against a sentence imposed by the appellate court.

Similar to the right of an offender to appeal sentence, leave of the appellate court is not required in the case of an appeal by the DPP. A prosecution appeal should not, however, be commenced unless the DPP thinks the appeal is “in the public interest”.123 The DPP has produced a policy dealing with appeals against sentence in the higher courts which provides some guidance in respect to appeals from the Children’s Court.124 If the DPP appeals under CYFA s 427(1), then under CYFA s 427(2) no further appeals can be brought in respect to the case. This recognises the principles of double jeopardy and finality. The right of the DPP to appeal a sentence from the Children’s Court was only created in 1989. (A Crown appeal against sentence in respect to adult offenders was only recognised in Victoria in 1970.) It is not surprising that the law has been slow to recognise a prosecution appeal against sentence imposed by the Children’s Court. Such an appeal not only involves a breach of double jeopardy principles, but the trauma and stresses involved can be exacerbated where the respondent is a child.

123 CYFA s 427(1). In deciding if the appeal is in the public interest, the DPP takes into account a range of factors. Amongst these is the general policy that when sentencing young persons, greater weight is given to the immaturity of the offender, and the need to divert young offenders from the adult criminal justice system. Another key factor is the likelihood of the appeal succeeding: see Office of Public Prosecutions Victoria, DPP Prosecutions Policies, Policy 52, “DPP appeals under s 427 and s 429A of the Children Youth and Families Act 2005” (23 March 2015) at [22]. 124 See Office of Public Prosecutions Victoria, DPP Prosecutions Policies, Policy 52, “DPP appeals under s 427 and s 429A of the Children Youth and Families Act 2005” (23 March 2015) at [22] and Policy 11, “Appeals by the DPP to the Court of Appeal” (7 July 2012).

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Who is the appellant? [3.460] In most cases, such an appeal will be initiated by the police informant who requests the DPP to act on their behalf.125 Victoria Police have no legal standing to commence proceedings in the higher courts in the name of Victoria Police. Disposition powers on an appeal under s 427 [3.470] Under CYFA s 429(2), on the hearing of the appeal under s 427 the appellate court: (a) must set aside the sentence of the Children’s Court; and (b) subject to this section, may impose any sentence which the appellate court considers appropriate and which the Children’s Court imposed or could have imposed; and (c) may exercise any power which the Children’s Court could have exercised.

Importantly, in deciding the appropriate sentence the appellate court: Must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.126

The appellate court can backdate the sentence to a date not earlier than the date of the original sentence.127 The sentence imposed by the appellate court is taken to be a sentence of the appellate court.128 Procedure on DPP appeal Notice of appeal [3.480] The DPP Notice of Appeal must be filed at any venue of the Children’s Court within 28 days of the sentence and a copy served on the respondent within seven days of filing.129 Under s 428(3) of the CYFA the notice must: (a) state the general grounds of appeal; and (b) be in the form prescribed by the rules of the appellate court.

For an appeal in the Supreme Court, the Notice of Appeal is in Form 6-3BC,130 and for the County Court it is in Form 4B.131 125 The Victoria Police Research and Training Group examines sentences imposed and identifies potential appealable cases. Apart from the police, victims and others concerned, also communicate with the Office of Public Prosecutions in respect to the adequacy of the sentence. 126 CYFA s 429(6). 127 CYFA s 429(7). 128 CYFA s 429(8). 129 CYFA s 428(2). The DPP must also provide a copy of the notice to the legal practitioner who last represented the respondent in the criminal proceedings to which the appeal relates: CYFA s 428(4). 130 Supreme Court (Criminal Procedure) Rules 2008 r 3B.06. 131 County Court Criminal Procedure Rules 2009 r 4.03(1).

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[3.490]

Appeal out of time [3.490] If an appeal under CYFA s 427 is commenced after the 28-day period specified in s 428, the notice of appeal is deemed to be an application for leave to appeal on the grounds stated in the notice.132 The appellate court can grant leave to appeal out of time if: (a) the court considers that the failure to file a notice of appeal within the period referred to in section 425(1) or 428 was due to exceptional circumstances; and (b) the court is satisfied the respondent’s case would not be materially prejudiced because of the delay. (3) If the appellate court does not grant leave to appeal under subsection (2), the appellate court must strike out the appeal.133

Nature of the appeal hearing [3.500] The appeal is conducted as a “rehearing” which, as discussed in Chapter 1, has been interpreted to mean a hearing de novo.134

DPP appeal sentence: breach of undertaking to assist authorities Right to appeal [3.510]

Under s 429A of the CYFA the DPP may:

appeal to the County Court or, if the Children’s Court was constituted by the President …, to the Trial Division of the Supreme Court against a sentence imposed on a child in respect of an indictable offence that was heard and determined by Children’s Court if – (a) the sentence was less severe because of an undertaking given by the child to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, whether or not proceedings for that offence had commenced at the time of sentencing; and (b) the DPP considers that the child has failed, wholly or partly, to fulfil the undertaking. (2) The DPP may bring an appeal under this section at any time, whether or not the sentence has been served.

Note that an appeal under CYFA s 429A can only be brought in respect to an indictable offence that was heard and determined summarily, whereas a DPP appeal under s 427 can be brought in respect to any sentence imposed by the Children’s Court. The undertaking by the offender must have resulted in a lesser sentence being imposed by the Children’s Court. Nature of the appeal under s 429A [3.520] Section 429C of the CYFA states that “[a]n appeal under section 429A must not be conducted as a rehearing”. This means the 132 CYFA s 430(1). 133 CYFA s 430(2). 134 CYFA s 429(1).

[3.540]

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hearing is not de novo but rather the appellate court determining whether, as a matter of fact, the respondent has breached the undertaking, and the extent of the breach. This is not an appeal against the original sentence in that the DPP is not challenging the correctness of the original sentence, but rather an appeal on the basis of events subsequent to the original sentence. This type of appeal can be commenced at any time even where the original sentence has been served.135 Disposition powers on appeal under s 429A [3.530] Under s 429C(2) of the CYFA, in the case of an appeal under s 429A, if the appellate court considers that the respondent has failed, wholly or partly, to fulfil the undertaking referred to in s 429(1)(a), the appellate court may: (a) set aside the sentence imposed by the Children’s Court; and (b) impose the sentence that it considers appropriate, having regard to the failure of the respondent to fulfil the undertaking. (3) In imposing a sentence under subsection (2), the appellate court must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.

Procedure on appeal under s 429A [3.540] For an appeal in the Supreme Court, Form 6-3BD is used for the notice of appeal.136 For an appeal in the County Court, Form 4B is used.137 The notice of appeal must be signed by the DPP personally and filed with the Registrar of the Children’s Court at any venue.138 The requirement that the DPP personally sign the notice reflects the sensitivity of such an appeal, particularly in respect to a child. However, if the statutory prerequisites for the appeal are satisfied, it would only be in exceptional circumstances that the DPP would not commence an appeal.139 A copy is then served on the respondent child.

135 CYFA s 429A(2). 136 Supreme Court (Criminal Procedure) Rules 2008 r 3B.07. 137 County Court Criminal Procedure Rules 2009 r 4.03. Given that Form 4B is used for a DPP appeal under s 427, then Form 4B appears appropriate for a DPP appeal under s 429A. 138 CYFA s 429B(1). 139 Office of Public Prosecutions Victoria, DPP Prosecutions Policies, Policy 52, “DPP appeals under s 427 and s 429A of the Children Youth and Families Act 2005” (23 March 2015) at [24].

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[3.550]

Respondent fails to appear at appeal [3.550] If the respondent fails to appear on a DPP appeal, the appellate court can either adjourn the hearing or determine the appeal in the absence of the respondent if satisfied the respondent was served with a copy of the notice.140 Recording and notification of result of appeal [3.560] When the appeal has been determined the Registrar completes Form 4F which sets out the result of the appeal. The Registrar forwards the form to the Children’s Court and to the parties.141 If the appellant is sentenced to a term of detention then the Form is sufficient authority to continue the appellant’s detention.

Appeal to Supreme Court on a question of law [3.570] As an alternative to a de novo appeal to the County Court or to the Trial Division of the Supreme Court, any party to a criminal proceeding in the Children’s Court (except for a committal proceeding) may appeal to the Supreme Court on a “question of law” from a “final order” of the Children’s Court.142 A final order is an order that finally determines the rights of the parties, as distinct from an interlocutory order.143 After hearing the appeal, the Supreme Court may make any order it considers appropriate, including remitting the case back to the Children’s Court with or without any direction in law.144 If a person appeals to the Supreme Court on a question of law under CYFA s 430P(1), the person abandons finally and conclusively any right to appeal to the County Court or the Trial Division of the Supreme Court in relation to that proceeding.145 This is clearly to avoid any “double dipping” and to enhance finality in criminal proceedings. Appeal on a question of law is dealt with in detail in Chapter 7 of this book.

Judicial review [3.580] Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 permits judicial review of the decision of an inferior court by way of an originating motion. The appellant (plaintiff) using this procedure is seeking relief in the form of certiorari, mandamus, prohibition or quo warranto. The defendant is a person having an interest in opposing the 140 CYFA s 429E(1). 141 County Court Criminal Procedure Rules 2009 r 4.8. 142 CYFA s 430P(1). 143 Discussed in CL, a Minor (by his Litigation Guardian) v DPP [2011] VSCA 227. 144 CYFA s 430P(9). 145 CYFA s 430Q.

[3.590]

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claim of the plaintiff, and the court, tribunal, or person in respect of whose exercise of jurisdiction or failure to exercise jurisdiction the plaintiff brings the proceedings. The usual practice is that the court or tribunal whose decision is being appealed does not appear at the appeal hearing. As discussed in Chapter 7 at [7.250], this type of appeal is used when the plaintiff asserts that a fundamental legal error in the proceedings (being appealed against) has occurred relating to the jurisdiction of the court. Clearly, this type of appeal is different from an appeal against a conviction or a sentence, a Case Stated and a DPP Reference.146 An appeal under O 56 could be brought in respect to a decision or order made by the Children’s Court. For example, in CL (a minor) v Lee147 the magistrate held the Children’s Court did not have jurisdiction to determine fitness to plead and held that the matter should proceed as a committal hearing, not as a summary hearing.148 Other examples include the decision of a magistrate in the Children’s Court to refuse to hear a charge of rape.149 Judicial review is also available under O 56 to review the decision of the single Supreme Court justice who heard the original appeal from the Children’s Court. An example is CL, a minor (by his Litigation Guardian) v DPP.150 Judicial review is discussed in detail in Chapter 7 of this book.

Costs [3.590]

Section 430ZH of the CYFA states:

No costs are to be allowed to a party to – (a) an appeal under this Part; or (b) a new hearing; or (c) a proceeding preliminary or incidental to an appeal or new hearing.

On an appeal on a question of law to the Supreme Court, the Supreme Court has a general discretion to award costs.151

146 For a useful discussion of the nature of an appeal under O 56, see Neill v County Court of Victoria (2003) 40 MVR 265; [2003] VSC 328. 147 [2010] VSC 517. 148 In CL (a minor) v Lee (2010) 29 VR 570; [2010] VSC 517 Lasry J held the magistrate was correct to hold that the Children’s Court lacked jurisdiction to determine fitness to plead. 149 C v Children’s Court of Victoria [2015] VSC 40 and Gild v Magistrates’ Court of Victoria [2015] VSC 84. 150 [2011] VSCA 227. In this case the Victorian Court of Appeal held that Lasry J was correct in upholding the decision of the magistrate. 151 Criminal Procedure Act 2009 (Vic) s 408.

138

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[3.600]

Sample forms [3.600] The following are examples of forms relevant to appeals from the Children’s Court. The forms referred to in this chapter are available on-line in the Rules or Regulations of the relevant court. [3.610]

Notice of appeal and undertaking: Form 4A

FORM 4A: NOTICE OF APPEAL CHILDREN’S COURT CASE No: COUNTY COURT CASE No:

IN THE MATTER OF: THIS FORM IS FILED ON BEHALF OF: ADDRESS: CONTACT DETAILS [If represented, please complete the legal practitioner details below] Contact No:

Email address:

Address for service: *I have Legal Representation [complete below] *I do not have Legal Representation Firm: Solicitor Code:

Practitioner’s Name: Ref:

TO the Registrar of the County Court at: [place] AND TO the Respondent: [name] Address for Respondent I wish to appeal against a decision of the Children’s Court at [place] on [date]. The details of the charges and sentences/order imposed were: Charge

Sentence/Order

[3.610]

3 Appeal and Other Applications from the Children’s Court of Victoria

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Reason for Appeal I am appealing against: *conviction and sentence *sentence alone *finding of unfitness to stand trial *finding of mental impairment *a supervision order *STATEMENT REGARDING IMPOSITION OF MORE SEVERE SENTENCE I am aware that on the hearing of my appeal, the County Court may impose a more severe sentence than the one imposed by the Children’s Court. Date: [Signature of Appellant]

*UNDERTAKING TO PROCEED WITH APPEAL I [name] of [address] undertake to: (a) appear at the County Court sitting at [place] which is located at [address] on [date] at [time] am/pm and to appear at the County Court for the duration of the appeal. (b) notify the County Court in writing of any change of address or representation. Date: [Signature of Appellant] In the presence of: [Signature of Registrar/Prison Officer/ Police Officer] *delete if not applicable

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[3.620]

[3.620]

Notice of appeal by DPP: Form 4B

FORM 4B: NOTICE OF APPEAL BY DPP AGAINST SENTENCE IMPOSED BY CHILDREN’S COURT To the Registrar of the Children’s Court: I, [full name], the DPP wish to appeal under section 427 of the Children, Youth and Families Act 2005 against a sentence imposed by the Children’s Court on [name of offender] of [address]. TAKE NOTICE that I apply to the County Court on the ground(s) set out below: The ground(s) of my appeal are: [state the general grounds of the appeal] I am satisfied that the appeal should be brought in the public interest. Date: [Signed by or on behalf of DPP] 1. 2. 3. 4. 5. 6. 7. 8. 9.

PARTICULARS Name of offender on whom sentence imposed: Offence for which offender convicted and sentenced to which this appeal relates: Convicted at Children’s Court: [place] Children’s Court Magistrate: Date of conviction: Sentence: Date of sentence: Name and address of legal practitioner who represented offender at summary proceeding: Name of counsel (if any) who represented offender at summary proceeding:

[3.630]

[3.630]

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Notice of appeal against order for unconditional release: Form 4BA

FORM 4BA: NOTICE OF APPEAL AGAINST ORDERS UNDER THE CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 IMPOSED BY CHILDREN’S COURT To the Registrar of the Children’s Court: *I, [full name], the DPP wish to appeal under section *38ZAA(1)/*38ZF(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 against an order for unconditional release made by the Children’s Court in relation to [name of offender] of [address] *I, [full name], the *DPP/*Attorney-General/*Secretary to the Department of Human Services/*Secretary to the Department of Health wish to appeal under section 38ZJ(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 against a supervision order imposed by the Children’s Court on [name of offender] of [address] TAKE NOTICE that I apply to the County Court on the ground(s) set out below: The ground(s) of my appeal are: [state the general grounds of the appeal] I am satisfied that the appeal should be brought in the public interest. Date: [Signed personally by *DPP/*Attorney-General/*Secretary to the Department of Human Services/*Secretary to the Department of Health] *delete if not applicable PARTICULARS Name of offender on whom order imposed: Offence for which offender dealt with to which this appeal relates: Order imposed at Children’s Court: [place] Children’s Court Magistrate: Order made: Date of order: Name and address of legal practitioner who represented offender at summary proceeding: 8. Name of counsel (if any) who represented offender at summary proceeding:

1. 2. 3. 4. 5. 6. 7.

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[3.640]

[3.640]

Notice of abandonment of appeal: Form 4C

FORM 4C IN THE COUNTY COURT CASE .......... No.: OF VICTORIA AT IN THE MATTER OF: NOTICE OF ABANDONMENT OF APPEAL–CONVICTION AND SENTENCE THIS FORM IS FILED ON BEHALF OF: ADDRESS: THIS MATTER IS NEXT LISTED ON: .......... [date] .......... FOR. CONTACT DETAILS [If represented, please complete the legal practitioner details below] Contact No.: ..........

Email address:

Address for service: *I have Legal Representation [complete below] *I do not have Legal Representation Firm: .......... Solicitor Code: ..........

Practitioner’s Name: Ref.:

TO the Registrar of the County Court at: AND TO the Respondent: [name] of [address] *I wish to abandon my appeal against conviction and sentence in the Children’s Court at [place] on [date] The Children’s Court reference number is The *conviction/*sentence/*orders imposed were I acknowledge that the *conviction/*sentence/*order appealed will take effect immediately upon lodging this form. Date: [Signature of Appellant] *delete if not applicable

Chapter 4

Appeals and Other Applications from the Magistrates’ Court of Victoria [4.10] Introduction ......................................................................................................................... 143 [4.20] Criminal jurisdiction of Magistrates’ Court ................................................................... 144 [4.30] Right to appeal conviction and sentence ....................................................................... 144 [4.40] What is a conviction? ......................................................................................................... 145 [4.50] What is a sentence? ............................................................................................................ 145 [4.60] Nature of the appeal hearing ........................................................................................... 145 [4.70] Disposition powers of the County Court ....................................................................... 146 [4.80] Defence of mental impairment and unfitness to stand trial ....................................... 147 [4.90] Rehearing based on absence of accused ......................................................................... 148 [4.110] Appeals from decisions of judicial registrar ................................................................ 150 [4.120] Appeal against sentence to Koori Court division of County Dourt ....................... 151 [4.130] Appeal against conviction or sentence under section 254: procedure .................... 152 [4.230] Warning appellant and abandonment of appeal ........................................................ 159 [4.240] Stay of proceedings pending appeal ............................................................................. 160 [4.250] Abandonment of appeal prior to hearing .................................................................... 160 [4.260] Failure to appear ............................................................................................................... 161 [4.270] Appeal against imposition of detention by County Court ....................................... 161 [4.330] Case stated by County Court on appeal ...................................................................... 164 [4.360] DPP reference to Court of Appeal ................................................................................. 165 [4.370] DPP appeals against leniency of sentence ................................................................... 165 [4.430] DPP appeal sentence: breach of undertaking to assist authorities .......................... 167 [4.480] Appeal to Supreme Court on a question of law ......................................................... 169 [4.490] Judicial review ................................................................................................................... 170 [4.500] Costs on appeal ................................................................................................................. 171 [4.510] Sample forms ..................................................................................................................... 171

Introduction [4.10] This chapter sets out the law governing appeals and other applications from the Magistrates’ Court of Victoria. This includes appeals against conviction, appeals against sentence, and appeals by the Director of Public Prosecutions (DPP). In general, the laws governing

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[4.20]

appeals and other applications are contained in Pt 6.1 of Ch 6 of the Criminal Procedure Act 2009 (Vic) (hereafter “CPA”).

Criminal jurisdiction of Magistrates’ Court [4.20] The Magistrates’ Court of Victoria is created by the Magistrates’ Court Act 1989 (Vic) (hereafter “MCA”) s 4(1) and consists of all the magistrates, judicial registrars and registrars. The Magistrates’ Court has a number of specialist Divisions (Drug Court Division, Koori Court Division, Family Violence Division, and Neighbourhood Justice Division) and sits in approximately 50 different venues around Victoria. The original criminal jurisdiction of the Magistrates’ Court extends to: • all summary offences; • all indictable offences triable summarily;1 • committal proceedings held in the Magistrates’ Court; and • making orders for the enforcement of fines. The Magistrates’ Court also has jurisdiction in respect to breaches of Commonwealth law pursuant to s 68 of the Judiciary Act 1903 (Cth). The Magistrates’ Court has appellate jurisdiction in relation to a decision of the Roads Corporation to refuse an application for a driver’s licence or to suspend, cancel or vary a driver’s licence.2

Right to appeal conviction and sentence [4.30]

Section 254 of the CPA states:

A person convicted of an offence by the Magistrates’ Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against – (a) the conviction and sentence imposed by the court; or (b) sentence alone.

The appeal is of right and therefore the appellant is not required to obtain leave of the County Court. There is, however, no provision for an appeal against conviction alone. At the commencement of the hearing the appellant should notify the judge whether the appeal is against conviction, against sentence, or against both conviction and sentence. 1 Indictable offences which can be heard summarily are those listed in Sch 2 of the CPA, those defined as level 5 or level 6 indictable offences, or offences that are punishable by level 5 or level 6 imprisonment or a fine, or offences punishable by a term of imprisonment not exceeding 10 years: CPA s 28. 2 Road Safety Act 1986 (Vic) s 26(1). This appeal is conducted as a rehearing. An appeal also lies to the Magistrates’ Court from the decision of the Roads Corporation to suspend a driver’s licence on the basis of loss of demerit points: Road Safety Act 1986 (Vic) s 26AA(1).

[4.60]

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If an appeal on a question of law to the Supreme Court has already been commenced, then an appeal to the County Court under s 254 of the CPA is not permitted.3 Further sources A Freiberg, Freiberg and Fox’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.180]. Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.2.

What is a conviction? [4.40] Under s 3(1) of the CPA a “conviction” includes a finding of guilt whether or not a conviction was recorded. Upon a finding of guilt, the Magistrates’ Court has a discretion to record a conviction or not, depending upon the sentence imposed.4 This recognises that the recording of a conviction can in itself constitute a form of punishment.

What is a sentence? [4.50]

Under s 3(1) of the CPA a sentence includes:

(a) the recording of a conviction; and (b) an order made under Part 3, 3A, 3B, 3BA, 3C, 3D, 4 or 5 of the Sentencing Act 1991 other than an order incidental to or preparatory to the making of the order; and (c) an order made under section 11 of the Sex Offenders Registration Act 2004; and (d) an order made under section 84S or 84T of the Road Safety Act 1986.

The orders referred to in s 3(1)(b) of the CPA are the orders that can be made under the following Parts of the Sentencing Act 1991: Part 3 (all sentences available to the Magistrates’ Court); Part 3A (Community Corrections Order); Part 3B (fines); Part 3BA (release on adjournment, unconditional discharge etc); Part 3C (contravention of sentence); Part 3D (superannuation order); Part 4 (restitution and compensation); Part 5 (Court Assessment Order and Court Secure Treatment order). Under s 104A of the Sentencing Act 1991 (Vic) a magistrate can correct minor, technical errors in a sentence such as a clerical error, an accidental slip or a defect in form. Under s 104B of the Sentencing Act 1991 (Vic) where the court has imposed a sentence that is contrary to law, a magistrate can re-open proceedings and correct the error. A sentence is not contrary to law just because the decision to impose it was reached by a faulty process of reasoning or factual error.

Nature of the appeal hearing [4.60]

Section 256(1) of the CPA states:

3 CPA s 273. 4 Sentencing Act 1991 (Vic) s 8. For further discussion, see A Freiberg, Freiberg and Fox’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [1.265].

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[4.70]

An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates’ Court.

The appeal is heard and determined by a single judge of the County Court without a jury. It is to be heard as a “rehearing”, which has been interpreted to mean a hearing de novo.5 This means that the appellant can change their original plea and call new evidence or conduct a different line of defence.6 Any amendments made by the magistrate are of no effect on the appeal and “everything which happened in the Magistrates’ Court is to be disregarded on the hearing of the County Court appeal”.7 A de novo hearing clearly has the potential to be more resource-intensive for the County Court than an appeal by way of a rehearing.8 An appeal to the County Court does not constitute a “trial” and therefore the judge cannot order Victoria Legal Aid to provide the appellant with a lawyer.9 Further source A Freiberg, Freiberg and Fox’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.200].

Disposition powers of the County Court [4.70] Under s 256(2) of the CPA, on hearing of an appeal, the County Court judge must: (a) set aside the sentence of the Magistrates’ Court; and (b) may impose any sentence which the County Court considers appropriate and which the Magistrates’ Court imposed or could have imposed; and (c) may exercise any power which the Magistrates’ Court exercised or could have exercised. 5 CPA ss 256(1) and 259(1); DPP v Fricke [1993] 1 VR 369 at 374; and Quick v Creanor [2015] VSCA 273 at [19]–[23]. 6 CPA s 256(1). 7 Candolim Pty Ltd v Garnett [2005] VSC 270 at [30]. 8 In Goldfinch v The Queen (1987) 30 A Crim R 212 at 219 McHugh J questioned whether de novo appeals from the NSW Local Courts to the District Court can be justified now that magistrates are fully legally trained and professional. In New South Wales in 1998, de novo appeals from the Local Court to the District Court were abolished and replaced by a system of rehearing based on the transcript of the summary hearing, and fresh evidence is only allowed with leave of the court: Crimes (Appeal and Review) Act 2001 (NSW) s 18(1). The effect of the 1998 reforms was discussed in Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244. Mason J stated that de novo appeals were now prohibited and the court must approach appeals in the same way the court approaches appeals from a judge-alone trial. Very few appeals under this section are commenced (6%): NSW Law Reform Commission, Report 5.13 (2014). The Victorian Law Reform Committee considered, but rejected, the NSW model for Victorian appeals to the County Court: Victorian Parliament Law Reform Committee, De Novo Appeals to the County Court (2006) p 203. 9 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25.

[4.80]

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The powers of the County Court judge under CPA s 256 are only enlivened when the appeal itself is commenced and not beforehand.10 The County Court has no power to remit the matter back to the Magistrates’ Court. The County Court is empowered to reinstate charges which had been struck out by the magistrate.11 This is because an order of the magistrate striking out a charge is interlocutory in nature, not final, and the magistrate is empowered to reinstate any charges which had been struck out. Since the County Court has the same powers as the magistrate, the County Court can also reinstate charges which had been struck out. The sentence (if imposed) can be backdated to a date not earlier than the sentence imposed in the Magistrate’s Court.12 Under s 256(5) a sentence imposed under s 256(2) is to be regarded as a sentence of the County Court, not the Magistrates’ Court. At the conclusion of the appeal the County Court must record the result of the appeal and that notice is then sent to the court whose sentence or order was appealed against.13 Further sources A Freiberg, Freiberg and Fox’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.205]. Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.2.2.1.

Defence of mental impairment and unfitness to stand trial [4.80] The defence of mental impairment is available in the Magistrates’ Court.14 If the court is satisfied that at the time of the offence, the accused either did not know the nature and quality of the conduct or did not know that the conduct was wrong, then he or she must be found not guilty because of mental impairment.15 In this event the accused must be discharged.16 The magistrate has no power to make any form of supervision order. At the time of writing this book, the Magistrates’ Court has no power to determine the separate issue of unfitness to stand trial. If the separate issue of whether the accused is unfit to stand trial arises, the powers of the court vary depending on the nature of the offence. If the issue arises during a committal proceeding, then the committal must be completed 10 Saric v Elliot [2013] VSC 509 at [18]. 11 Quick v Creanor [2015] VSCA 273. 12 CPA s 256(4). 13 Under the County Court Criminal Procedure Rules 2009 (Vic) r 3.02 the Registrar must record the result in Form 3G and forward the notice to the Magistrates’ Court. 14 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 5(1). 15 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20(2). 16 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 5(2).

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[4.90]

and the accused must not be discharged because of unfitness to plead.17 If the accused is committed to stand trial, the issue of unfitness to plead is then reserved for the trial judge who must consider if there is a “real and substantial” question as to the fitness of the accused to stand trial.18 The procedure for determining fitness to plead in the higher courts is explained in Chapter 6 of this book. If unfitness to plead arises in respect to an indictable offence (including indictable offences triable summarily), it appears that the only option is for the matter to be “uplifted” to the higher courts rather than determined summarily.19 If the issue arises in respect to a summary offence, the only options are for the prosecution to withdraw the charges or for the magistrate to discharge the accused.20 If the accused pleaded guilty and was convicted, he or she could, however, appeal to the County Court on the basis of the defence of mental impairment. In the Magistrates’ Court there are no appeal procedures in relation to unfitness to stand trial. The inability of the Magistrates’ Court to directly deal with the issue of fitness to stand trial in the same way as occurs in the higher courts is a serious gap in the operation of the CMIUTA and, as explained in Chapter 3, the Victorian Law Reform Commission has recently recommended that the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) relating to unfitness to stand trial should apply to the Magistrates’ Court (with suitable modification).21 This is a welcome recommendation. At the time of writing this book, the Victorian Government has not yet responded to these recommendations.

Rehearing based on absence of accused [4.90]

Under s 88 of the CPA:

If a sentence is imposed by the Magistrates’ Court in a criminal proceeding on a person who did not appear in the proceeding, that person, or the informant on that person’s behalf, may apply to the Magistrates’ Court for an order that the charge be reheard.

17 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 8(1). 18 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 8(2)(b). 19 Victorian Law Reform Commission, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Consultation Paper (2013) at [6.14]. In CL (a minor) v Lee (2010) 29 VR 570; [2010] VSC 517 Lasry J confirmed the Magistrates’ Court has no power to determine fitness to stand trial and that indictable offences must be committed to a higher court for investigation of the issue: at [46]. The Victorian Court of Appeal subsequently held that Lasry J was correct in his analysis: see CL, a minor (by his Litigation Guardian) v DPP [2011] VSCA 227. 20 Victorian Law Reform Commission, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Consultation Paper (2013) at [2.69]. 21 Victorian Law Reform Commission, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Final Report (2014) Recommendations 27 and 28.

[4.100]

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Pursuant to s 89 of the CPA, the notice of intention to apply for a rehearing must state the reason the person did not appear in the proceeding and be filed with the Registrar at the Magistrates’ Court where the sentence was imposed. While s 88 of the CPA does not give an automatic right of rehearing, under s 92 of the CPA the magistrate has a discretion in whether to allow the rehearing: On an application under section 88 the Magistrates’ Court may set aside any findings and orders made in the earlier proceeding subject to any terms and conditions that it thinks just and rehear the charge.

Clearly, the rehearing of the charge is not an appeal against the substance of the orders made but rather a new hearing de novo based on a procedural irregularity. The procedure under the MCA s 88 is not a “review” of the original decision. The original orders can be said to be annulled. On an application under s 88 of the CPA, if the charge sheet was served on the applicant by ordinary service (that is, by post) and the court is satisfied that the charge sheet was not brought to the attention of the applicant prior to the hearing of the charge, then “the court must set aside any findings and orders made in the earlier proceeding and rehear the charge”.22 Further source A Freiberg, Freiberg and Fox’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.175]. Application for rehearing: procedure [4.100] An application for a rehearing should be filed using Form 18.23 The notice must be served on the respondent within seven days of filing the notice or, if the informant makes the application on behalf of the person sentenced, then the informant must serve a copy of the notice on that person within seven days of filing the notice.24 Once the notice has been filed the sentence imposed is stayed – except for cancellation, suspension or variation of a driver’s licence – until the application for a rehearing has been heard or, if a rehearing is granted, until the charge has been reheard.25 The applicant can, however, apply to the Magistrates’ Court for a stay of the orders cancelling or suspending the driver’s licence.26 22 CPA s 94. 23 Magistrates’ Court Criminal Procedure Rules 2009 r 31. 24 CPA s 90. 25 CPA s 91(1). 26 CPA s 91(2).

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[4.110]

If the applicant fails to appear on the date set for the rehearing, he or she can only apply again for a rehearing with leave of the Magistrates’ Court.27

Appeals from decisions of judicial registrar [4.110] A judicial registrar is a quasi-judicial officer whose role is to assist the magistracy by hearing and determining a range of less serious criminal (and civil) matters.28 The jurisdiction of a judicial registrar is determined by the Chief Magistrate who, pursuant to the Magistrates’ Court (Judicial Registrars) Rules 2005 (Vic), delegates specific powers to the registrars. Under r 4(1) of the Magistrates’ Court (Judicial Registrars) Rules 2005 (Vic) a judicial registrar can hear all criminal matters (except those offences where the maximum sentence is a term of imprisonment), deal with the return of a search warrant, consider applications for adjournment to allow an offender to undergo diversion, and make forfeiture and disposal orders. However, a judicial registrar has no power to impose a term of imprisonment, detention in a Youth Justice Centre, a Drug Treatment Order, or to hear an appeal.29 Under s 16K(2) of the MCA a party to a proceeding heard by a judicial registrar can request that the decision of the registrar be reviewed by the Court – that is, a magistrate. The request is considered by a magistrate who can then direct whether or not a review should take place. The review is conducted before another magistrate as a hearing de novo.30 Not surprisingly, the review is a de novo hearing because the magistrate is reviewing the exercise of powers delegated to the judicial registrar by the Chief Magistrate. In these circumstances, an effective system of supervision and control over judicial registrars exercising delegated powers is required and a de novo appeal provides this level of control.

27 CPA s 93. 28 The office of judicial registrar was created in 2005 to provide greater flexibility and support for the work of Victorian magistrates. A judicial registrar is appointed by the Governor-in-Council upon recommendation from the Chief Magistrate and AttorneyGeneral. The appointment is for five years but reappointment is possible. A judicial registrar is not subject to direction or control in their work as a registrar and enjoys the same immunity as a Supreme Court judge: MCA s 16J. There are currently six judicial registrars of the Magistrates’ Court, servicing some 18 regional courts. The office of judicial registrar also exists in the higher courts: Supreme Court Act 1986 s 113E and County Court Act 1958 Pt 1 Div 3B s 17M. 29 MCA s 16I(b). 30 MCA s 16K(3).

[4.120]

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The request (application) for a review must be filed within 14 days of the decision, and if a review is directed, then the decision of the judicial registrar is stayed.31 The request must use Form 1 in the Magistrates Court (Judicial Registrars) Rules 2005. In DPP v Bryer32 the prosecution appealed (on a question of law and by way of judicial review) to the Supreme Court against a decision of a magistrate to accept a plea of autrefois convict. The following propositions emerge from that case per Rush J: • Section 16K of the MCA provides all parties, including the police prosecutor, with a right to review. • As a de novo appeal, “a defence based on a plea in bar is not available”. Thus, a respondent to an appeal cannot argue that since the charge was dismissed by the judicial registrar, a magistrate cannot review that decision. • The application or request seeking a review should itself be heard in open court, not in chambers (at [45]) but a failure to do so does not make the decision (to review) void, but only voidable. • A police prosecutor can make a request for a review on behalf of the police informant. Section 16K of the MCA does not preclude rights of appeal to the superior courts. An appeal on a question of law is available from a decision of a judicial registrar (discussed further at [4.320] and in Chapter 7). This right of appeal was confirmed in Rodger v Wojcik33 by Croucher J who noted that two other CPA s 272 appeals against orders of a judicial registrar were heard and determined by Dixon J in McWhirter v Dunlop; Tran v Harris.34 A de novo appeal to the County Court pursuant to CPA s 254 is also available from the decision of a judicial registrar as the hearing of a criminal charge before a judicial registrar is regarded as a criminal proceeding pursuant to Pt 3.3 of the CPA.

Appeal against sentence to Koori Court division of County Court [4.120] The Koori Court Division of the County Court has jurisdiction to hear and determine an appeal against sentence in limited circumstances. Under the County Court Act 1958 (Vic) s 4D(1), both the offender and the DPP can appeal against the sentence imposed in the Magistrates’ Court to the Koori Court Division. The prerequisites for an appeal to the Koori Court are that the accused is Aboriginal, the offence is within the jurisdiction of the County Court 31 Magistrates Court (Judicial Registrars) Rules 2005 (Vic) r 7. 32 DPP v Bryer (2014) 241 A Crim R 172; [2014] VSC 224. 33 Rodger v Wojcik (2014) 67 MVR 223; [2014] VSC 308. 34 McWhirter v Dunlop; Tran v Harris [2013] VSC 697.

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[4.130]

(excluding sexual offences and breaches of an intervention order or family violence safety notice), the accused pleads guilty, the accused consents to the Koori Court hearing the appeal, and the Koori Court considers it appropriate to hear the appeal.35 The appeal is heard as a rehearing and is limited to the sentence imposed.36

Appeal against conviction or sentence under section 254: procedure [4.130] The following flowchart summarises the procedure for appeals against conviction and sentence from the Magistrates’ Court.

35 County Court Act 1958 s 4E. 36 County Court Act 1958 s 4D(2).

[4.140]

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Notice of appeal [4.140] An appeal under s 254 of the CPA is commenced by filing a notice of appeal with a registrar (using Form 3A)37 at any venue of the Magistrates’ Court within 28 days from the date of the sentence.38 Where the appeal is against a number of sentences, one appeal notice in respect of all sentences is sufficient. The registrar must record in the register the filing of the notice of appeal and then contact the County Court to obtain a hearing date and place.39 The notice must be signed by the appellant in the presence of the registrar of the Magistrates’ Court.40 The notice must stipulate whether the appeal is against conviction and sentence, or sentence alone, and be in the form prescribed by the rules of the County Court.41 The notice of appeal must contain a statement (signed by the appellant) stating that the appellant is aware that, on the hearing of the appeal, the County Court may impose a sentence more severe than that being appealed against.42 The notice of appeal must also include an undertaking by the appellant that he or she will appear at the County Court to proceed with the appeal at a place and time fixed by the County Court, and that he or she will notify the registrar of the County Court of any change of address.43 Such a notice of undertaking requires the use of Form 3B.44 Before accepting the notice of appeal, the registrar of the Magistrates’ Court must give the appellant a notice stating that on hearing the appeal, the County Court may impose a sentence more severe than that being appealed against.45 This notice is in Form 3B.46 Note the emphasis given in the notice of appeal, and the appeal procedure, to warning the appellant of the danger of the County Court imposing a heavier sentence than the sentence being appealed against. Historically, if a County Court judge was considering imposing a more severe sentence than that being appealed, he or she would warn the appellant to enable the appellant to abandon the appeal.47 However, in 1999, as a result of concerns about the de novo nature of County Court 37 County Court Criminal Procedure Rules 2009 r 3.02(1). 38 CPA s 255(1). 39 Magistrates’ Court Criminal Procedure Rules 2009 r 70. If the appeal is expected to take more than one day, a pre-appeal mention is held: County Court Criminal Division, Practice Note PNCR 1-2015 s 31. 40 County Court Criminal Procedure Rules 2009 r 3.02(3). 41 CPA s 255(3). 42 CPA s 255(4). 43 CPA s 255(5). 44 County Court Criminal Procedure Rules 2009 r 3.02. 45 CPA s 255(6)(a). 46 County Court Criminal Procedure Rules 2009 r 3.02(2). 47 In NSW this is known as a “Parker direction”: see Parker v DPP (1992) 28 NSWLR 282.

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[4.150]

appeals being abused by unmeritorious appeals, thereby wasting valuable resources of the County Court, the Magistrates’ Court Act 1989 was amended to no longer require County Court judges to give such a warning. This was designed to both deter unmeritorious appeals and to make the appeal process more efficient. Following an inquiry and recommendations by the Victorian Law Reform Committee, the rule that judges no longer warn the appellant was abrogated.48 The registrar of the Magistrates’ Court sends the notice of appeal to the County Court registrar who then fixes a date for the appeal.49 Further source Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.2.3.1A, “Pre-Trial Mention”. Service of notice of appeal [4.150] A copy of the notice must be served on the respondent within seven days of the filing of the notice of appeal.50 Appeal out of time [4.160] If the notice of appeal is filed outside the 28-day period, the notice is deemed to be an application for leave to appeal, on the grounds set out in the notice.51 Under s 263(2) of the CPA the County Court judge can grant leave to appeal if: (a) the court considers that the failure to file a notice of appeal within the period referred to in section 255(1) or 258 was due to exceptional circumstances; and (b) the Court is satisfied that the respondent’s case would not be materially prejudiced because of the delay.

In deciding whether to grant leave to appeal out of time, the courts have taken a strict approach, at least in the case of an application to the Court of Appeal for leave to appeal a conviction or sentence. The following principles provide a useful guide: 48 Law Reform Committee, De Novo Appeals to the County Court (Parliamentary Paper, Victorian Parliament, 2006) p 45. 49 Under the County Court Criminal Procedure Rules 2009 (Vic) r 3.04, the registrar of the County Court must fix a date. The registrar of the Magistrates’ Court must also send to the County Court the original charge sheet, the undertaking of bail, a copy of the court order, and the exhibit sheet: Magistrates’ Court Criminal Procedure Rules 2009 r 70(5). The registrar of the Magistrates’ Court must also forward a copy of the notice of appeal to the DPP if an appeal is commenced under CPA s 255: Magistrates’ Court Criminal Procedure Rules 2009 r 70(1). 50 CPA s 255(2). Service can be effected in any of the ways set out in CPA s 392. 51 CPA s 263(1). The registrar must record in the register that an application for leave to appeal has been made and must recall and cancel any process issued to give effect to a sentence that is the subject of the appeal: Magistrates’ Court Criminal Procedure Rules 2009 r 72.

[4.170]

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• the statutory time limit is intended to provide finality and compliance is ordinarily required; • extending time is a matter of discretion for the court and the applicant must provide material and considerations to support the application in order to persuade the court to exercise its discretion in the applicant’s favour; • the court will in general require “special and substantial reasons” for extending time; • the longer the period of delay the more exceptional will the circumstances have to be in order for leave to be granted; • any considerable extension of time should not be granted unless the court thinks there are such merits in the appeal that it would probably succeed; and • a reasonably satisfactory account of the failure to comply with the time limits needs to be forthcoming.52 If leave to appeal out of time is not granted, the appeal must be struck out.53 If the appeal is struck out, and the appellant had been sentenced to a term of imprisonment by the Magistrates’ Court, the registrar of the County Court can issue a warrant for the arrest of the appellant.54 Upon striking out the appeal, the sentence of the Magistrates’ Court is reinstated.55 Further source Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.2.3.1. Bail pending appeal [4.170] If the appellant is in custody as a result of the original sentence, he or she can make application to the Magistrates’ Court to be bailed pending the appeal (“appeal bail”).56 The appellant must give reasonable notice to the respondent.57 The determination of bail pending appeal is made on the same basis as if the appellant was a person in custody and the Bail Act 1977 (Vic) (“BA”) applied.58 52 These principles are from R v Darby (unreported, Vic Sup Ct, Court of Criminal Appeal, 2 May 1974) at pp 1–2, subsequently followed in many cases such as Efandis v The Queen (2014) 41 VR 456; [2014] VSCA 42. There is an argument that, on an appeal from the Magistrates’ Court to the County Court, the principles from Darby should not be applied with the same degree of rigour as an appeal to the Court of Appeal from a conviction in the higher courts, as the appeal from the Magistrates’ Court is as of right. 53 CPA s 263(3). 54 CPA s 263(4). 55 CPA s 263(5). 56 CPA s 265(1). For a more detailed account, see G Hampel, D Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2014) pp 89–90. 57 CPA s 265(1)(b). 58 CPA s 265(2).

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[4.180]

Further source G Hampel, D Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2014) pp 89–90. Further application for bail where bail refused or revoked [4.180] If the initial application for bail is unsuccessful, under BA s 18 an accused person who has been refused bail and is in custody may subsequently make a further application for bail. A further application for bail is not an “appeal” but rather a right to make successive applications for bail.59 (This would also apply to a person who has been arrested and brought before a magistrate or a bail justice and bail has been refused, or where a person’s bail has been revoked.) The further application for bail is made using Form 11 of the Bail Act Regulations 2012. If the charge is murder or treason, the application can only be made to the Supreme Court; for other charges, the application is made to the court where the accused is remanded to appear. In the case of a person appealing from the Magistrates’ Court, the further application is made to the County Court.60 However, under BA s 18AA(1) the County Court must not hear the renewed application unless: (a) the applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail; or (b) the applicant was not represented by a legal practitioner when bail was refused or revoked; or (c) the order refusing or revoking bail was made by a bail justice.

The concept of “new facts or circumstances” has been considered in a number of cases.61 The phrase is broad and can take into account a plethora of fresh considerations such as delay, ill-health, and the availability of support services. An application under s 18 of the BA is to be conducted as a rehearing of whether bail should be granted rather than a strict appeal to determine if an error was made in the original decision.62

59 Beljajev v DPP (unreported, VSCA, 8 August 1991). At common law an appeal regarding bail is a foreign concept. 60 See County Court Practice Direction PNCR 1-2015 s 8. 61 See, eg, Re Application for Bail by Foxwell (No 2) [2014] VSC 145; R v Robert Vincent Holt (unreported, Vic Sup Ct, Marks J, 19 June 1984); Mokbel v DPP [2002] VSC 127; Beljajev v DPP (unreported, VSCA, 8 August 1991). 62 BA s 18AB. In Beljajev v DPP (unreported, VSCA, 8 August 1991) the Court of Appeal distinguished between the right to “appeal” a bail decision and the right of an accused to make successive applications for bail: at p 22.

[4.200]

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Appeal refusal of bail to Supreme Court [4.190] In addition to BA s 18, the Supreme Court has an inherent jurisdiction to grant bail to persons awaiting trial.63 This is recognised in BA ss 18AA(2) and 18AH.64 It is not uncommon for the Supreme Court to hear an appeal by a person against the refusal of a magistrate to grant bail.65 The Supreme Court of Victoria Practice Note No 5 of 2004 sets out the procedure to be adopted. A Notice of Intention to apply for bail must be prepared and supported by an affidavit setting out the facts to be relied on in the application. A copy of the application and affidavit must be served on the DPP who can then prepare prosecution submissions. In urgent cases Practice Note No 5 of 2004 can be waived.66 The application is filed with the Prothonotary and should include all the information required by O 27 of Ch 1 of the Supreme Court (General Civil Procedure) Rules 2015. If the DPP consents to bail being granted, the judge can make an order to that effect without the parties having to attend the hearing. The right of an accused to make a further application for bail after the Supreme Court has determined an appeal regarding bail is unclear.67 If bail is ultimately refused, the appellant will remain in custody pending the hearing of the appeal. Application for variation of bail [4.200] Both the accused person and the informant/DPP may apply to vary the amount of bail or the conditions of bail.68 Where the applicant is the accused, the application is made using Form 11 of the Bail Act Regulations 2012 (and Form 11A for the notice to the informant). Form 12 is used by the informant or the DPP. If the charge is murder or treason, the application is made to the Supreme Court, and in all other cases, to the court where the accused was bailed to appear. If bail was granted by a bail justice or a magistrate within 24 hours and the accused is unable to comply with bail conditions, the accused can then apply to the bail justice

63 R v Durose [1991] 1 VR 176; Dixon v DPP [2009] VSC 224. Section 18AA(2) of the BA states: “Nothing in this section derogates from the right of a person in custody to apply to the Supreme Court for bail.” 64 See Supreme Court of Victoria Practice Note No 5 of 2004. 65 See, eg, Re Application for Bail by RL [2014] VSC 336 (11-year-old child); Re Application for Bail by RS [2013] VSC 350; and Re NT [2014] VSC 381. 66 G Hampel, D Gurvich and Bruhn S, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) p 115, referring to AW v The Queen [2013] VSC 56. 67 G Hampel, D Gurvich and Bruhn S, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) p 77. 68 BA s 18AC.

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[4.210]

or the magistrate to vary bail.69 Apart from the BA s 18AC, the Supreme Court has an inherent jurisdiction to vary bail imposed by a magistrate or the County Court.70 DPP appeal against decision to grant bail [4.210] Under BA s 18A the DPP may appeal to the Supreme Court against an order granting bail if: (a) the DPP is satisfied that: (i) the conditions of bail are insufficient; or (ii) the decision to grant bail contravenes the BA; and (b) the DPP thinks it is in the public interest to appeal. This right extends to the Commonwealth DPP.71 The DPP must provide a copy of the notice of the appeal to the respondent and any sureties within one month from the date bail was granted.72 The appeal is heard by a single judge of the Trial Division of the Supreme Court. On the appeal, if the Supreme Court thinks that a different order should have been made, the court must set aside the original order and “conduct a fresh hearing” in relation to the granting of bail.73 If the respondent is not present at the appeal, the court can issue an arrest warrant. In DPP (Cth) v Barbaro74 the Court of Appeal stated that in determining an appeal under BA s 18A it is not essential that the DPP demonstrate error in the original decision. It is open to the DPP to establish that the original decision to grant bail was manifestly wrong, without pointing to any specific error made: In other words the Director is not, in our opinion, confined to relying upon an error of law as the ground of appeal but may succeed if he shows that on any ground, whether of fact or law, discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made.75

However, the court also noted that the decision to grant bail is a matter of “practice and procedure” and this operates as a severe constraint on an appellate court. For this reason the appellate court will usually be reluctant to interfere with the original decision.

69 BA s 18AC(4). 70 R v Barrett [1959] VR 458; BA s 18AH. 71 Beljajev v DPP (unreported, VSCA, 8 August 1991). See also Crimes Act 1914 (Cth) s 15AA(3A); G Hampel, D Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) p 121. 72 BA s 18A(2). 73 BA s 18A(6). 74 DPP (Cth) v Barbaro (2009) 20 VR 717. 75 DPP (Cth) v Barbaro (2009) 20 VR 717 at [10].

[4.230]

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If the DPP or the respondent is not satisfied with the decision of the single Supreme Court judge, the DPP or the respondent can appeal that decision to the Court of Appeal.76 Revocation of bail [4.220] Under BA s 18AE the DPP can apply to a court to revoke a person’s bail. The application is made using Form 13 of the Bail Act Regulations 2012. Under BA s 18AG if the court refuses to revoke bail, the DPP can appeal that decision to the Supreme Court. If a person who was on bail has been arrested for breaching bail, he or she can be taken before a bail justice or a court which can then revoke bail.77 If the court refuses to revoke bail, the DPP can appeal that decision to the Supreme Court.78

Warning appellant and abandonment of appeal [4.230] Under CPA s 256(3) the County Court judge is required to warn the appellant, as early as possible in the hearing, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Magistrates’ Court. This is an example of how procedural fairness can be reflected in appeal processes. The obligation to warn only arises when there is a “practical possibility” in the particular case, as distinct from a theoretical possibility in all cases.79 A failure to properly warn the appellant that he or she faces the prospect of a more severe sentence being imposed can invalidate the appeal hearing.80 If, as a result of a warning by the County Court judge under CPA s 256(3), the appellant abandons the appeal, the County Court judge must “strike out” the appeal.81 If the appeal is struck out, the original sentence of the Magistrates’ court is “reinstated” and may be enforced as if an appeal had not been made.82 Further source Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.2.1. 76 BA s 18A(12). This section implements the decision in Fernandez v DPP (2002) 5 VR 374. The Court of Appeal will in general be reluctant to interfere with the decision of the trial judge as a bail decision is a matter of practice and procedure: Dale v DPP [2009] VSCA 212; YSA v DPP (2002) 133 A Crim R 368; [2002] VSCA 149. 77 BA s 24. 78 BA s 24(4). 79 Firth v County Court of Victoria [2014] VSC 448 at [34]. 80 See Firth v County Court of Victoria [2014] VSC 448; see also Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55; Lucev v Queensland Police Service (2012) 1 Qd R 518. 81 CPA s 266(4). 82 CPA s 266(5)(a). This provision thus seems to override CPA s 256(2)(a) which requires the County Court to “set aside” the sentence of the Magistrates’ Court on the hearing of the appeal. The sentence which was “set aside” is now “reinstated”. Section 266(5) overrides the previous decision of Helfenbaum v Sattler (1999) 3 VR 583; [1999] VSC 548

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[4.240]

Stay of proceedings pending appeal [4.240] Upon filing the notice of appeal against sentence, if the appellant is not in custody because of the sentence, the sentence (but not the conviction) is stayed.83 If the appellant is in custody at the time of filing the notice of appeal, the appeal operates as a stay of the sentence if the appellant files the notice of appeal and enters bail if bail is granted under s 265 of the CPA.84 If the court grants an application for a stay under s 29(2) of the Road Safety Act 1986 (Vic), the registrar must notify the Roads Corporation and the County Court.85 Further sources Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.2.3.2. A Freiberg, Freiberg and Fox’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.190].

Abandonment of appeal prior to hearing [4.250] An appeal to the County Court can be abandoned by the appellant filing the notice of abandonment (Form 3D86) with the registrar of the County Court.87 Leave of the County Court is not required. If the appeal is abandoned prior to the hearing, the notice of abandonment can be emailed to the registry.88 If the appeal was against conviction and sentence, and the appeal against conviction is abandoned but the appeal against sentence continues, then the appellant must give written notice (using Form 3E89) to the County Court and the respondent.90 If the appellant was sentenced to a term of imprisonment, but is not in custody (for example, the appellant obtained

which held that when the County Court sets aside the sentence of the Magistrates’ Court, the Magistrates’ Court is functus officio and any order made by the County Court judge is an order of the County Court (followed in DPP v Shoan (2007) 176 A Crim R 457; [2007] VSCA 220 at [20]). 83 CPA s 264(1). 84 CPA s 264(2). 85 Magistrates’ Court Criminal Procedure Rules 2009 r 71. Section 29(2) of the Road Safety Act 1986 (Vic) provides that the Magistrates’ Court can order a stay of an order disqualifying a person from obtaining a driver’s licence or permit. 86 County Court Criminal Procedure Rules 2009 (Vic) r 3.05. 87 CPA s 266(1). The registrar then strikes out the appeal. 88 County Court Practice Note 1-2015 s 32.1. 89 County Court Criminal Procedure Rules 2009 r 3.06; Practice Direction 1-2015 s 32.3. 90 CPA s 266(2).

[4.270]

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bail pending the appeal), the appellant can abandon the appeal by surrendering to the registrar of the County Court and completing the notice of abandonment.91 Further source Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.2.3.3.

Failure to appear [4.260] If the appellant fails to appear at the appeal, the County Court can strike out the appeal or adjourn the proceedings on any conditions it thinks appropriate.92 If the appeal is struck out and the appellant was originally sentenced to a term of imprisonment, the registrar of the County Court can issue a warrant of arrest.93 However, on application by the appellant (using Form 3F94), the County Court can set aside an order striking out the appeal if satisfied the failure to appeal was not due to “fault or neglect on the part of the appellant”.95 If the County Court grants an application to set aside the order striking out the appeal, the County Court must notify the registrar of the Magistrates’ Court, who must then record the grant of the application.96

Appeal against imposition of detention by County Court Right to apply for leave to appeal [4.270] If the appellant was sentenced by a County Court judge to a term of detention, following an appeal under CPA s 256 (appeal by defendant), or CPA s 259 (appeal by DPP against sentence), or CPA s 262 (DPP appeal against sentence), but the appellant had not been sentenced to detention by the Magistrates’ Court, then using Form 6-2C97 the appellant can appeal to the Court of Appeal if the Court of Appeal gives leave to appeal.98 The significance of this appeal is that the usual rule is that an appeal from the Magistrates’ Court to the County Court under the CPA s is final, unless judicial review of the entire proceedings is relied upon. In the absence of CPA s 283(2) the appellant has no right to appeal to the Court of Appeal from the decision of the County Court. The justification for 91 CPA s 266(3). 92 CPA s 267(1). 93 CPA s 267(1A). 94 County Court Criminal Procedure Rules 2009 (Vic) r 3.07; Practice Direction 1-2015 s 34. 95 CPA s 267(3). 96 Magistrates’ Court Criminal Procedure Rules 2009 r 73. 97 Supreme Court (Criminal Procedure) Rules 2008 r 2.05(3). 98 CPA s 283(2). The insertion of CPA ss 259 and 262 clarifies that an appellant can appeal under CPA s 283 even where the DPP was the appellant in the appeal to the County Court. This confirms the ruling in DPP v Shoan (2007) 176 A Crim R 457; [2007] VSC 220.

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[4.280]

CPA s 283(2) is an aspect of procedural fairness in that it is prima facie unfair for an appellant to be sentenced to a term of imprisonment on appeal when he or she did not receive a term of imprisonment in the Magistrates’ Court. Note this additional right to appeal does not arise if the offender has been sentenced to a term of detention by the Magistrates’ Court, and the appellate court simply increased the term of detention. Also note s 283(2) only enables the appellant to argue that the term of imprisonment should not have been imposed. The Court of Appeal can of course reject that argument. The application for leave is heard by a single Judge of Appeal.99 Further source A Freiberg, Freiberg and Fox’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.210]. Test for application for leave to appeal under CPA s 283 [4.280] Under CPA s 284A(1), on hearing the application for leave to appeal the Court of Appeal may refuse the application if: (a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the County Court; or (b) there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence imposed by the County Court.

Test to determine appeal under CPA s 283 [4.290] Assuming leave is granted, on hearing the appeal under s 285 of the CPA, the Court of Appeal must allow the appeal if the appellant satisfies the court that: (a) there is an error in the sentence imposed; and (b) a different sentence should be imposed. (2) In any other case, the Court of Appeal must dismiss the appeal under section 283.

Note there are two limbs to the test to be applied. It is not sufficient for the appellant simply to show an error in the sentence. The appellant must also show that the error is serious enough to justify the imposition of a different sentence. However, if the Court of Appeal is considering imposing a more severe sentence than that imposed by the Magistrate’s Court, the court must warn the appellant (as early as possible in the appeal hearing) of this possibility.100 On an appeal to the County Court against sentence by the DPP, this situation could be described as a double breach of the rule against double jeopardy. That is, on the DPP appeal (to 99 CPA s 315(1)(a). 100 CPA s 285(3).

[4.320]

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the County Court) against sentence, the defendant has faced being sentenced again by the County Court, but on the further appeal to the Court of Appeal, the defendant faces being sentenced again by the Court of Appeal, and possibly to an even more severe sentence. Orders on successful appeal under CPA s 283 [4.300] Under s 286 of the CPA if the appeal is allowed, the Court of Appeal must set aside the sentence imposed by the County Court and either: “(a) impose the sentence, whether more or less severe, that it considers appropriate; or (b) remit the matter to the County Court”. If the matter is remitted back to the County Court, the Court of Appeal can give directions concerning the manner and scope of the further hearing.101 Procedure on appeal under CPA s 283 [4.310] The notice of application must be filed within 28 days of the sentence and the registrar of Criminal Appeals of the Supreme Court provides a copy of the notice to the respondent.102 The applicant can apply for bail pending the appeal. The prison officer who first has custody of the person who has just been sentenced by the County Court must immediately inform the person of their right to appeal under the CPA s 283 and provide them with Forms 6-2C and 6-2R which set out details of that right.103 Appealing out of time under CPA s 283(2) [4.320] If the notice of application for leave to appeal is filed outside the 28 days of the sentence, using Form 6-2H104 the Court of Appeal has a discretion under CPA s 313 to provide an extension of time for commencing the appeal. An example of an appeal where the County Court judge imposed a term of imprisonment when the magistrate did not is DPP v Shoan.105 In this case the appellant had been sentenced to a community-based order by the magistrate. On an appeal against sentence by the DPP, the County Court judge imposed a term of imprisonment of three months.106 On a further appeal to the Court of Appeal by the appellant (the original accused), the Court of Appeal upheld the appeal and resentenced him to three months imprisonment fully suspended except for the 43 days the offender had 101 CPA s 286(2). 102 CPA s 284(2). 103 Supreme Court (Criminal Procedure) Rules 2008 r 2.54. 104 Supreme Court (Criminal Procedure) Rules 2008 r 2.22. 105 DPP v Shoan (2007) 176 A Crim R 457; [2007] VSCA 220. 106 The DPP appeal was brought under s 84 of the Magistrates’ Court Act 1989 (Vic), now replaced by CPA s 257(1).

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[4.330]

already been in custody: at [29]. The fact that the prosecutor agreed to the original sentence imposed by the magistrate was a significant factor in the decision of the Court of Appeal.

Case stated by County Court on appeal [4.330] If, under s 302A of the CPA, on the hearing of an appeal under CPA Pt 6.1 to the County Court from the Magistrates’ Court, a question of law arises, the County Court judge may reserve the question for determination by the Court of Appeal if the judge thinks “it is in the interests of justice to do so” having regard to: (a) the extent of any disruption or delay to the hearing that may arise if the question of law is reserved; and (b) whether the determination of the question of law may – (i) render the hearing unnecessary; or (ii) substantially reduce the time required for the hearing; or (iii) resolve a novel question of law that is necessary for the proper conduct of the hearing.

Although an interlocutory appeal under CPA s 295 is not available in the Magistrates’ Court, the Case Stated procedure could be categorised as a form of interlocutory appeal in that the application is made to the Court of Appeal before the conclusion of the appeal hearing. In this sense the appeal is not an appeal against a decision of the appellate judge, but rather the seeking of an opinion from the Court of Appeal as to what is the correct legal principle in relation to the question of law that was reserved. The purpose of this type of appeal is thus to clarify an important legal principle which may reduce the time necessary for the original appeal, or indeed dispose of the need for the appeal. Note that any party can request the judge to reserve the question of law, or the judge himself or herself could reserve the question. If the court does reserve the question of law, the appeal proceedings must be adjourned if reasonably practicable to do so.107 Refusal to reserve question of law [4.340] If the County Court judge refuses to reserve the question of law, then pursuant to CPA s 304 the party seeking to have the question reserved can apply to the Court of Appeal seeking an order calling upon the judge and the respondent to “show cause” why the question of law should not be reserved. Under s 304 of the CPA the Court of Appeal can order the County Court to reserve the question of law, or can dismiss the application by the aggrieved party. County Court states a case [4.350] If the County Court judge does reserve the question of law, the judge must “state a case”. This means setting out in written form the 107 CPA s 303(2).

[4.370]

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precise question to be answered by the Court of Appeal and the circumstances in which the question has arisen.108 The judge must personally sign the Case Stated and transmit it to the Court of Appeal within a reasonable time.109 The Court of Appeal then decides the question raised and the Registrar of Criminal Appeals subsequently forwards the opinion to the County Court, which then enters the judgment on the court record.110

DPP reference to Court of Appeal [4.360] If a person is acquitted following an appeal to the County Court, the DPP may refer to the Court of Appeal any “question of law” that arose in those proceedings.111 The Court of Appeal must consider the question raised and provide its opinion.112 If the acquitted person appears at the hearing, then he or she is entitled to costs. Crucially, a DPP Reference does not affect in any way the appeal hearing or the acquittal.113 The purpose of the DPP Reference is to provide clarification of a specific legal question and thus serves the broader interests of the administration of justice. A DPP Reference is not an appeal in the true or strict sense of an “appeal”, but this procedure is clearly important for the overall administration of justice in Victoria.

DPP appeals against leniency of sentence Right to appeal [4.370]

Section 257 of the CPA states:

(1) The DPP may appeal to the County Court against a sentence imposed by the Magistrates’ Court in a criminal proceeding conducted in accordance with Part 3.3 if satisfied that an appeal should be brought in the public interest. (2) The DPP must not bring a further appeal against a sentence imposed by the County Court.

Similar to the right of an offender to appeal the sentence, leave of the appellate court is not required. The DPP has produced a policy dealing with appeals against sentence in the higher courts which provides some guidance in respect to appeals from the Magistrates’ Court.114 If the DPP appeals under CPA s 257(2), no further appeals can be brought in respect to the case. This recognises the principles of double jeopardy and finality. 108 CPA s 305. 109 CPA s 305(2). 110 CPA s 307. 111 CPA s 308(1). 112 CPA s 308(2). 113 CPA s 308(4). 114 See Office of Public Prosecutions Victoria, DPP Prosecutions Policies, Policy 11, “Appeals by the DPP to the Court of Appeal” (7 July 2012).

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[4.380]

Further source Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.2.2.2. Who is the appellant? [4.380] In most cases, such an appeal will be initiated by the police informant who requests the DPP to act on his or her behalf.115 Victoria Police have no legal standing to commence proceedings in the higher courts in the name of Victoria Police. The appellant is the DPP. Disposition powers on appeal under s 257 [4.390] Under CPA s 259(2), on the hearing of the appeal under s 257 the County Court: (a) must set aside the sentence of the Magistrates’ Court; and (b) may impose any sentence which the County Court considers appropriate and which the Magistrates’ Court imposed or could have imposed; and (c) may exercise any power which the Magistrates’ Court exercised or could have exercised.

Importantly, in deciding the appropriate sentence the appellate court: Must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.116

The appellate court can backdate the sentence to a date not earlier than the date of the original sentence.117 The sentence imposed by the appellate court is taken to be a sentence of the appellate court.118 Procedure on DPP appeal Notice of appeal [4.400] The DPP notice of appeal must be filed at any venue of the Magistrates’ Court within 28 days of the sentence and a copy served on the respondent within seven days of filing.119 Under s 258(3) of the CPA the notice must: “(a) state the general grounds of appeal; and (b) be in the form prescribed by the rules of the appellate court”. For the County Court the notice is in Form 3C.120 115 The Victoria Police Research and Training Group examines sentences imposed and identifies potential appealable cases. Apart from the police, victims and others concerned also communicate with the Office of Public Prosecutions in respect to the adequacy of the sentence. 116 CPA s 259(3). 117 CPA s 259(4). 118 CPA s 259(5). 119 CPA s 258(1). The DPP must also provide a copy of the notice to the legal practitioner who last represented the respondent in the criminal proceedings to which the appeal relates: CPA s 258(4). 120 County Court Criminal Procedure Rules 2009 r 3.03(1).

[4.430]

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Within seven days of serving the notice on the respondent, the appellant must file an affidavit of service and a copy of the notice with the County Court registrar.121 Appeal out of time [4.410] If an appeal under CPA s 255(1) or 258 is commenced after the 28-day period specified, the notice of appeal is deemed to be an application for leave to appeal on the grounds stated in the notice.122 Under CPA s 263(2) and (3) the County Court can grant leave to appeal out of time if: (a) the court considers that the failure to file a notice of appeal within the period referred to in section 255(1) or 258 was due to exceptional circumstances; and (b) the court is satisfied the respondent’s case would not be materially prejudiced because of the delay. (3) If the appellate court does not grant leave to appeal under subsection (2), the appellate court must strike out the appeal.

Nature of the appeal hearing [4.420] The appeal is conducted as a “rehearing” which, as discussed in Chapter 1 at [1.850], has been interpreted to mean a hearing de novo.123

DPP appeal sentence: breach of undertaking to assist authorities Right to appeal under CPA s 260 [4.430]

Under s 260(1) and (2) of the CPA the DPP may:

appeal to the County Court against a sentence imposed on a person convicted of an indictable offence that was heard and determined summarily by the Magistrates’ Court if – (a) the sentence was less severe because of an undertaking given by the person to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, whether or not proceedings for that offence had commenced at the time of sentencing; and (b) the DPP considers that the person has failed, wholly or partly, to fulfil the undertaking. … (2) The DPP may bring an appeal under this section at any time, whether or not the sentence has been served.

Note that an appeal under CPA s 260 can only be brought in respect to an indictable offence that was heard and determined summarily, whereas a DPP appeal under s 257 can be brought in respect to any sentence 121 County Court Criminal Procedure Rules 2009 r 3.03. 122 CPA s 263(1). 123 CPA s 259(1).

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[4.440]

imposed by the Magistrates’ Court. The undertaking by the offender must have resulted in a lesser sentence being imposed by the Magistrates’ Court. Further source Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.2.2.3. Nature of appeal under CPA s 260 [4.440] Section 262(1) of the CPA states: “An appeal under section 429A must not be conducted as a rehearing.” This means the hearing is not de novo, but rather the appellate court determining whether, as a matter of fact, the respondent has breached the undertaking, and the extent of the breach. It is not an appeal against the original sentence in that the DPP is not challenging the correctness of the original sentence, but rather an appeal on the basis of events subsequent to the original sentence. This type of appeal can be commenced at any time even where the original sentence has been served. Disposition powers on appeal under s 260 [4.450] Under s 262(2) and (3) of the CPA, on an appeal under s 260, if the County Court considers that the respondent has failed, wholly or partly, to fulfil the undertaking referred to in s 260(1)(a), the County Court may: (a) set aside the sentence imposed by the Magistrates’ Court; and (b) impose the sentence that it considers appropriate, having regard to the failure of the respondent to fulfil the undertaking. (3) In imposing a sentence under subsection (2), the appellate court must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.

Procedure on appeal under CPA s 260 [4.460] For an appeal in the County Court, Form 3C is used.124 The notice of appeal must be signed by the DPP personally and filed with the registrar of the Magistrates’ Court at any venue.125 The requirement that the DPP personally sign the notice reflects the sensitivity of such an appeal, particularly in respect to a child. However, if the statutory prerequisites for the appeal are satisfied, it would only be in exceptional circumstances that the DPP would not commence an appeal.126 A copy is then served on the respondent within 14 days of filing the notice. 124 County Court Criminal Procedure Rules 2009 r 3.03(1A). 125 CPA s 261(2). 126 Office of Public Prosecutions Victoria, DPP Prosecutions Policies, Policy 52, “DPP appeals under s 427 and s 429A of the Children Youth and Families Act 2005” (23 March 2015) at [24].

[4.480]

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Within seven days of serving the notice on the respondent the DPP must file an affidavit of service and a copy of the notice with the County Court registrar.127 The registrar then fixes a date for the hearing and notifies the parties.128 Respondent fails to appear at appeal [4.470] If the respondent fails to appear on a DPP appeal under CPA s 260, the County Court can either adjourn the hearing or determine the appeal in the absence of the respondent if satisfied the respondent was served with a copy of the notice.129

Appeal to Supreme Court on a question of law [4.480] An appeal by way of a question of law is discussed in detail in Chapter 7 of this book. However, a brief summary is provided here. A party to a criminal proceeding in the Magistrates’ Court (other than a committal proceeding) can appeal, as of right, to the Supreme Court on a “question of law” from a “final order” of the Magistrates’ Court in that proceeding.130 An appeal on a question of law is available from the decision of a judicial registrar.131 A question of law includes, for example, whether the magistrate failed to take into account a relevant factor, or took into account an irrelevant factor, or misinterpreted a legislative provision, or misconstrued the functions of the court. Where the police wish to commence an appeal, the DPP brings the appeal.132 Where the appellant is the DPP, it is not necessary to formally establish that the police informant has requested the DPP to commence the appeal; all that is required is that the appellate court be satisfied on the balance of probabilities that the police informant desires to exercise the right.133 A final order is an order which finally determines the rights

127 County Court Criminal Procedure Rules 2009 r 3.03(2). 128 County Court Criminal Procedure Rules 2009 r 3.04. 129 CPA s 268(1). 130 CPA s 272(1).This right of appeal was previously contained in s 92 of the Magistrates’ Court Act 1989 (Vic).The registrar of the Magistrates Court must record in the register when a copy of the notice of appeal has been received: Magistrates’ Court Criminal Procedure Rules 2009 (Vic) r 74. 131 Rodger v Wojcik (2014) 67 MVR 223; [2014] VSC 308; McWhirter v Dunlop; Tran v Harris [2013] VSC 697. 132 CPA s 272(2). 133 Luff v DPP (2003) 39 MVR 277; [2003] VSCA 81 at [18].

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[4.490]

of the parties, as distinct from (for example) an interlocutory order.134 A final order includes the decision of a magistrate to dismiss a charge135 or to convict the accused.136 The question of law must have arisen in the final order of the court, although the final order may involve some preliminary or interlocutory order. An appellant can apply for bail pending the appeal.137 Further source A Freiberg, Freiberg and Fox’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.215].

Judicial review [4.490] For a detailed discussion of judicial review, see Chapter 7 of this book. Briefly, O 56 of the Supreme Court (General Civil Procedure) Rules 2015 permits judicial review of the decision of an inferior court by way of an originating motion. The appellant (plaintiff) using this procedure is seeking relief in the form of certiorari, mandamus, prohibition or quo warranto. The defendant is a person having an interest in opposing the claim of the plaintiff, and the court, tribunal, or person in respect of whose exercise of jurisdiction, or failure to exercise jurisdiction, the plaintiff brings the proceedings. The usual practice is that the court or tribunal whose decision is being appealed does not appear at the appeal hearing. This type of appeal is used when the plaintiff asserts that a fundamental legal error in the proceedings (being appealed against) has occurred relating to the jurisdiction of the court. Clearly, this type of appeal is different from an appeal against a conviction or a sentence, a Case Stated and a DPP Reference.138 An appeal under O 56 could be brought in respect to a decision or order made by the Magistrates’ Court. An example is CL (a minor) v Lee139 where the magistrate held the Magistrates’ Court did not have jurisdiction to determine fitness to plead and held that the matter should proceed as a

134 Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20. The legal effect of the order, not the practical effect, is the determinative factor. In Engebretson v Bartlett (2007) 16 VR 417; [2007] VSC 163 the question of law was whether the magistrate was correct to reject evidence going to the credibility of a prosecution witness. 135 DPP v Bryer (2014) 241 A Crim R 172; [2014] VSC 224. 136 Magee v Delaney (2012) 39 MVR 50; [2012] VSC 407. 137 CPA s 272 and Supreme Court (General Civil Procedure) Rules 2005 r 77.03. 138 For a useful discussion of the nature of an appeal under O 56, see Neill v County Court of Victoria (2003) 40 MVR 265; [2003] VSC 328. 139 CL (a minor) v Lee (2010) 29 VR 570; [2010] VSC 517.

[4.510]

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committal hearing, not as a summary hearing.140 Other examples include the decision of a magistrate in the Magistrates’ Court to refuse to hear a charge of rape.141 Judicial review is also available under O 56 for a decision of a single Supreme Court justice who heard the original appeal from the Magistrates’ Court. An example is CL, a minor (by his Litigation Guardian) v DPP.142

Costs on appeal [4.500] On an appeal to the County Court, if the appellant is successful the County Court can order the respondent (informant) to pay the costs of the appellant.143 If the appeal to the County Court is struck out or dismissed and the court is of the view that the appeal was brought vexatiously or frivolously, the court can award costs against the appellant.144 If the appellant abandons the appeal, the court can order costs against the appellant.145 On a DPP appeal against sentence based on a breach of undertaking under CPA s 260, there is no express power to award costs.146 On an appeal to the Supreme Court on a question of law, the Supreme Court has a general discretion to award costs.147 Further source Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 19.4.3.1.

Sample forms [4.510] The following forms are samples of the forms referred to in this chapter. All of the forms referred to in this chapter are available in the rules of the relevant court. 140 In CL (a minor) v Lee (2010) 29 VR 570; [2010] VSC 517 Lasry J held the magistrate was correct to hold that the Magistrates’ Court lacked jurisdiction to determine fitness to plead. 141 C v Children’s Court of Victoria [2015] VSC 40; Gild v Magistrates’ Court of Victoria [2015] VSC 84. 142 CL, a minor (by his Litigation Guardian) v DPP [2011] VSCA 227. In this case the Victorian Court of Appeal held that Lasry J was correct in upholding the decision of the magistrate. 143 On an appeal under CPA s 254, the County Court has the same powers as the Magistrates’ Court. Section 406(2) of the CPA states: “Nothing in subsection (1) limits any discretion as to costs of an appeal conferred on the County Court by any other provision of this Act or the County Court Act 1958.” See Perkins v County Court of Victoria (2000) 2 VR 246. 144 CPA s 406(1). 145 CPA s 406(4). The respondent can apply to the County Court for a costs order within 28 days of receiving the notice that the appeal has been struck out: CPA s 407(1). 146 Perkins v County Court of Victoria (2000) 2 VR 246. 147 CPA s 408.

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[4.520]

[4.520]

Notice of application for rehearing: Form 18

FORM 18: APPLICATION FOR A REHEARING (Section 88 of the Criminal Procedure Act 2009) Informant’s name Agency Accused’s name Address

Date of birth Licence No. Phone No. Postcode

THIS APPLICATION WAS FILED BY: *THE ACCUSED/*THE INFORMANT ON BEHALF OF THE ACCUSED On [date] the Magistrates’ Court at [venue] found the accused guilty of and ordered: The order was made in the absence of the accused. The reason for the accused’s non-attendance was: [specify reasons] The charge-sheet was served Ο personally Ο by post Ο other On [date] the accused intends to apply to the Magistrates’ Court at [venue] for an order that the sentencing be set aside and the charge to be reheard. Signature of Applicant: Date: APPLICATION FOR STAY OF ORDER (If the order affected the driver’s licence) On [date] the accused intends to apply to the Magistrates’ Court at [venue] for an order that the order affecting the driver’s licence be stayed and that the licence holder be allowed to drive until the decision of the re-hearing. Signature of Applicant: Date: NOTES FOR INFORMATION If the application is made by the accused: 1. Within 7 days of lodging the application, you must serve a copy of the application on the person who charged you. This is done – (a) by giving a copy of the application to the informant or a person representing the informant at a hearing in relation to the charge; or (b) by sending a copy of the application by prepaid ordinary post addressed to the informant at the business address nominated by the informant; or

[4.520]

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(c) by sending a copy of the application by fax or email addressed to the informant at the fax number or email address nominated by the informant; or (d) by leaving a copy of the application for the informant at the informant’s business address with a person who appears to work there; or (e) in any other manner agreed to by the informant. Once you have served the application you must complete the “Affidavit of Service” and give it to the Registrar of the Court at the venue where your case was heard. You must do this within a reasonable time before the court date for the hearing of the application. 2. If you are making an application for a stay of order you must serve a copy of the application on the person who charged you 7 days before the court date for the hearing of the application. 3. If you are in custody only because of the order that is the subject of this application, you may apply for bail pending the re-hearing. If the application is made by the informant on behalf of the accused: A copy of the notice must be served in the same manner as a summons may be served.

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[4.530]

[4.530]

Notice of Appeal and Undertaking under CPA s 254: Form 3A

FORM 3A: NOTICE OF APPEAL MAGISTRATES’ COURT CASE No.: COUNTY COURT CASE No.:

IN THE MATTER OF: THIS FORM IS FILED ON BEHALF OF: ADDRESS: CONTACT DETAILS [If represented, please complete the legal practitioner details below] Contact No.: .......... Email address: Address for service: *I have Legal Representation [complete below] *I do not have Legal Representation Firm: .......... Practitioner’s Name: Solicitor Code: .......... Ref.: TO the Registrar of the County Court at: [place] AND TO the Respondent: [name] Address for Respondent: I wish to appeal against a decision of the Magistrates’ Court at [place] on [date]. The details of the offences and sentences/order imposed were: Offence

Sentence/Order

Reason for Appeal I am appealing against: *conviction and sentence *sentence alone STATEMENT SENTENCE

REGARDING

IMPOSITION

OF

MORE

SEVERE

I have been advised and I am aware that on the hearing of my appeal, the County Court may impose a more severe sentence than the one imposed by the Magistrates’ Court and I have been given a copy of the information in Form 3B.

[4.530]

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Date: [Signature of Appellant]

UNDERTAKING TO PROCEED WITH APPEAL I [name] of [address] undertake to: (a) appear at the County Court sitting at [place] which is located at [address] on [date] at [time] a.m./p.m. and to appear at the County Court for the duration of the appeal. (b) notify the County Court in writing of any change of address or representation. Date: [Signature of Appellant]

In the presence of: [Signature of Registrar/Prison Officer/Police Officer]

*delete if not applicable

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Criminal Appeals and Reviews in Victoria

[4.540]

[4.540]

Notice re undertaking: Form 3B

FORM 3B: INFORMATION FOR APPELLANT Notice under section 255 of the Criminal Procedure Act 2009 To the Appellant: TAKE NOTICE that in relation to your appeal, the County Court may impose a sentence which is more severe than that which has been imposed on you by the Magistrates’ Court. ALSO TAKE NOTICE THAT you must sign the acknowledgement contained in your notice of appeal that you have been advised that on your appeal, the County Court may impose a sentence which is more severe than that which has been imposed on you by the Magistrates’ Court. FURTHER INFORMATION FOR APPELLANT A copy of the notice of appeal must be served on the respondent within 7 days after the day on which the notice is filed. The notice must be served: (a) by giving a copy of the document to– (i) the informant; or (ii) a person representing the informant at a hearing in relation to the charge; or (b) by sending a copy of the document by prepaid ordinary post addressed to the informant at the business address nominated by the informant under section 18 of the Criminal Procedure Act 2009; or (c) by sending a copy of the document by fax or email addressed to the informant at the fax number or email address nominated by the informant under section 18 of the Act; or (d) by leaving a copy of the document for the informant at the informant’s business address with a person who appears to work there; or (e) in any other manner agreed between the informant and the party serving the document. INFORMATION CONCERNING ABANDONING AN APPEAL If you decide to abandon your appeal against both conviction and sentence, you must file a notice of abandonment of appeal in accordance with Form 3D of the County Court Criminal Procedure Rules 2009. If you decide to abandon your appeal against conviction but pursue your appeal against sentence alone you must file a written notice of abandonment of appeal–conviction only in Form 3E of the County Court Criminal Procedure Rules 2009. You should contact the County Court for further information.

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INFORMATION CONCERNING FAILURE TO APPEAR AT AN APPEAL If you fail to appear at the appeal hearing the Court may strike out your appeal or adjourn the proceedings on any terms the Court thinks appropriate. INFORMATION CONCERNING COSTS OF AN APPEAL If the Court strikes out or dismisses your appeal, it may order you to pay all or a specified portion of the respondent’s costs if it is satisfied that the appeal was brought vexatiously or frivolously or in abuse of process. APPLICATION FOR LEAVE TO APPEAL If your notice of appeal has been filed more than 28 days after you were sentenced, your appeal is deemed to be an application for leave to appeal. The Court will consider your application prior to an appeal hearing commencing. If your application is granted, the Court may continue to hear your appeal on that day or adjourn the matter to a future date. LEGAL ASSISTANCE If you wish to make application for legal assistance you must make application in writing to Victoria Legal Aid (Melbourne – 9269 0120) (Rural Areas – 1800 677 402). The Court office can advise you of the address of the nearest Victoria Legal Aid office. Such application must be made immediately because it may take some time to process. You should take all necessary steps promptly so that, if you are granted legal aid, there will be enough time for advice to be given to you by your lawyer about the appeal.

178

[4.550]

Criminal Appeals and Reviews in Victoria

[4.550]

Notice of DPP appeal against sentence: Form 3C

FORM 3C: NOTICE OF APPEAL BY DPP AGAINST *SENTENCE IMPOSED BY MAGISTRATES’ COURT/*FAILURE OF PERSON TO FULFIL UNDERTAKING To the Registrar of the Magistrates’ Court: I, [full name], the DPP wish to appeal *under section 257 of the Criminal Procedure Act 2009 against a sentence imposed by the Magistrates’ Court on [name of offender] of [address] *under section 260 of the Criminal Procedure Act 2009 against a lesser sentence imposed by the Magistrate’s Court on [name of offender] of [address] TAKE NOTICE that I apply to the County Court on the ground(s) set out below: The ground(s) of my appeal are: [state the general grounds of the appeal] *In the case of an appeal under section 257 of the Act, I am satisfied that the appeal should be brought in the public interest. *In the case of an appeal under section 260 of the Act, the offender was convicted of an indictable offence that was heard and determined summarily by the Magistrates’ Court, received a lesser sentence and that person has failed to fulfil an undertaking given to assist law enforcement authorities after sentencing. Date: [Signed by or on behalf of DPP] PARTICULARS 1. Name of offender on whom sentence imposed: 2. Offence for which offender convicted and sentenced to which this appeal relates: 3. Convicted at: [place and court] 4. Magistrate: 5. Date of conviction: 6. Sentence: 7. Date of sentence: 8. Name and address of legal practitioner who represented offender at summary proceeding: 9. Name of counsel (if any) who represented offender at summary proceeding:

[4.550]

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LISTING OF APPEAL This appeal is listed for hearing before the County Court at [venue] at [time] *a.m./*p.m. on [date]. Date: *Registrar/*Deputy Registrar

*delete if not applicable

180

[4.560]

Criminal Appeals and Reviews in Victoria

[4.560]

Notice of application for leave to appeal sentence of detention by County Court: Form 6-2C

Rules 2.05(3), 2.54

FORM 6-2C

IN THE SUPREME COURT OF VICTORIA .......... 20 No. AT BETWEEN

A.B. and C.D.

Appellant Respondent

NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IMPOSED BY COUNTY COURT ON APPEAL FROM MAGISTRATES’ COURT UNDER SECTION 283 OF THE CRIMINAL PROCEDURE ACT 2009 To the Registrar of Criminal Appeals: I, [full name], am convicted of the offence of [description of offence] and I am a prisoner at [name of prison]. TAKE NOTICE THAT I APPLY to the Court of Appeal under section 283 of the Criminal Procedure Act 2009 for leave to appeal to the Court of Appeal against the sentence of [details of sentence] passed upon me by the County Court. The grounds on which I apply are: [state specifically and concisely and not merely in general terms each ground on which you intend to appeal]. PARTICULARS 1. Name of appellant: 2. Offence for which convicted and in relation to which it is sought to appeal: 3. Originally convicted at the Magistrates’ Court at [place of Court] and sentenced to [sentence or other order imposed by the Magistrates’ Court]; 4. Sentence substituted by County Court: 5. Sentencing Judge: 6. Date sentence of County Court imposed: Date: [Signed by Appellant]

[4.560]

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181

WRITTEN CASE MUST BE ATTACHED 1. This application for leave to appeal must be accompanied by a written case in support of the application. 2. A written case must comply with the requirements of any applicable practice direction. Practice directions may be viewed at, and downloaded from, the website of the Supreme Court of Victoria at http://www.supremecourt.vic.gov.au. ORAL HEARING OPTION I wish to have an oral hearing of my application *I will be represented at the oral hearing by:

❑

Counsel ❑ Solicitor ❑ Myself ❑

[please tick appropriate boxes] I *wish/*do not wish to be present personally at the oral hearing. I *wish/*do not wish to appear by audio visual link at the oral hearing. Date: [Signed by appellant or legal practitioner on behalf of appellant]

NOTES TO APPELLANT–ORAL HEARING OPTION: 1. It is the aim of the Court of Appeal to deal with the majority of applications for leave to appeal by a single Judge of Appeal without an oral hearing. Consequently, unless you request an oral hearing, a single Judge of Appeal may determine the application on the basis of your grounds of appeal and accompanying written case without an oral hearing. 2. You may, however, request an oral hearing of your application by completing this section of this Form. This request must be confirmed to the Registrar of Criminal Appeals in writing in accordance with any applicable Practice Direction. 3. You must attach your written case in support of your application whether or not you request an oral hearing.

182

[4.570]

Criminal Appeals and Reviews in Victoria

[4.570]

Notice of abandonment of appeal: Form 3D

FORM 3D IN THE COUNTY COURT CASE No.: OF VICTORIA AT IN THE MATTER OF: NOTICE OF ABANDONMENT OF APPEAL THIS FORM IS FILED ON BEHALF OF: ADDRESS: THIS MATTER IS NEXT LISTED ON: [date] FOR. CONTACT DETAILS [If represented, please complete the legal practitioner details below] Contact No.: .......... Email address: Address for service: *I have Legal Representation [complete below] *I do not have Legal Representation Firm: .......... Practitioner’s Name: Solicitor Code: .......... Ref.: TO the Registrar of the County Court at: AND TO the Respondent: [name] of [address] *I wish to abandon my appeal against conviction and sentence in the Magistrates’ Court at [place] on [date] The Magistrates’ Court reference number is The *conviction/*sentence/*orders imposed were I acknowledge that the *conviction/*sentence/*order appealed will take effect immediately upon lodging this form. Date: [Signature of Appellant]

*delete if not applicable

[4.580]

4 Appeals and Other Applications from the Magistrates’ Court of Victoria

[4.580]

Notice of application to set aside order striking out appeal: Form 3F

183

FORM 3F IN THE COUNTY COURT CASE No.: OF VICTORIA AT IN THE MATTER OF: APPLICATION TO SET ASIDE ORDER STRIKING OUT APPEAL FOR FAILURE TO APPEAR THIS FORM IS FILED ON BEHALF OF: ADDRESS: THIS MATTER WAS LISTED ON: [date] CONTACT DETAILS [If represented, please complete the legal practitioner details below] Contact No.: .......... Email address: Address for service: *I have Legal Representation [complete below] *I do not have Legal Representation *I represent the applicant Firm: .......... Practitioner’s Name: Solicitor Code: .......... Ref.: TO the Registrar of the County Court at: AND TO the Respondent: [name] of [address] An appeal was lodged against a decision of: *the Magistrates’ Court at [place] on [date] The Magistrates’ Court reference number is I wish to apply for an order to set aside the order striking out my appeal for my failure to appear made by the County Court on [date].

184

Criminal Appeals and Reviews in Victoria

[4.580]

Reasons for application The application is made on the grounds that the failure to appear was not due to fault or neglect on the part of the appellant. My reasons are: [give details] Date: [Signature of Applicant/Applicant’s Legal Practitioner]

Notice of this application must be served on the respondent a reasonable time before the hearing of the application. Under section 392 of the Criminal Procedure Act 2009, the notice must be served: (a) by giving a copy of the document to– (i) the informant; or (ii) a person representing the informant at a hearing in relation to the charge; or (b) by sending a copy of the document by prepaid ordinary post addressed to the informant at the business address nominated by the informant under section 18 of that Act; or (c) by sending a copy of the document by fax or email addressed to the informant at the fax number or email address nominated by the informant under section 18 of that Act; or (d) by leaving a copy of the document for the informant at the informant’s business address with a person who appears to work there; or (e) in any other manner agreed between the informant and the party serving the document. The filing of this application does not stay the original sentence. LISTING OF APPLICATION This application is listed for hearing before the County Court at [place] at [time] a.m./p.m. on [date] Date: Registrar/Deputy Registrar

*delete if not applicable

Chapter 5

Appeals against Interlocutory Decisions [5.10] Introduction ......................................................................................................................... 185 [5.20] Right to appeal interlocutory decision ........................................................................... 186 [5.30] Who can appeal? ................................................................................................................. 187 [5.40] What is an interlocutory decision? .................................................................................. 187 [5.50] Is a decision to uphold a no case submission an interlocutory decision? ............... 188 [5.60] Initial contact with registry of Court of Appeal ........................................................... 188 [5.70] Certification by trial judge ................................................................................................ 189 [5.130] Test to determine application for leave to appeal ...................................................... 192 [5.170] Test to determine appeal ................................................................................................. 194 [5.180] Orders available on successful appeal .......................................................................... 195 [5.190] Urgent interlocutory appeal ............................................................................................ 195 [5.200] What happens if trial judge refuses to certify? ........................................................... 195 [5.290] Procedure on application for leave to appeal interlocutory decision ..................... 198 [5.300] Notice of application for leave to appeal ..................................................................... 200 [5.310] Summary of contentions .................................................................................................. 200 [5.320] Affidavit in support .......................................................................................................... 201 [5.330] Who determines application for leave to appeal? ...................................................... 201 [5.340] Time limits on application for leave ............................................................................. 201 [5.350] Application to apply out of time ................................................................................... 201 [5.360] Service of notice of application for leave ..................................................................... 202 [5.370] Role of registrar ................................................................................................................. 202 [5.380] Hearing of application for leave to appeal .................................................................. 202 [5.440] Hearing of the appeal ...................................................................................................... 205 [5.460] Appeal abandoned ........................................................................................................... 206 [5.470] Costs .................................................................................................................................... 206 [5.480] Post-appeal procedures .................................................................................................... 207 [5.490] Sample forms ..................................................................................................................... 207

Introduction [5.10] One of the most significant reforms introduced by the Criminal Procedure Act 2009 (Vic) (hereafter “CPA”) in 2009 was the introduction of interlocutory appeals in criminal proceedings in Victoria.1 1 For an early discussion, see B Gardner and P Priest, “An Appealing Procedure” (2009) 83 Law Inst J 32. See also R Edney, “Interlocutory Appeals in Victoria: Existing Jurisprudence and Likely Future Trends” (Paper, Foley’s List, Victorian Bar, 13 February

186

Criminal Appeals and Reviews in Victoria

[5.20]

Prior to the CPA, interlocutory appeals could not lie from determinations of trial judges pursuant to the Supreme Court Act 1986 (Vic) s 17A(3). The policy behind this rule was the avoidance of disruption and fragmentation associated with such interlocutory appeals.2 The accused had to wait until he or she was convicted before being able to argue legal error occurred in the trial, and the prosecution simply had no recourse if, through legal error, the trial judge ruled critical (“terminatory”) evidence to be inadmissible, resulting in the failure of the prosecution case. The idea of introducing interlocutory appeals in criminal proceedings was first proposed by the Victorian Court of Appeal itself and accepted by the Victorian Government.3 This chapter outlines the right to appeal an interlocutory decision, subject to the Court of Appeal granting leave to appeal. The relevant law is found in Div 4 of Pt 6.3 of the CPA. Further sources Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.4.3. P Priest, “Appeals in Criminal Cases″ in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (subscription service, Thomson Reuters) Vol 3 2016 at [3.3.150]. Court of Appeal, Practice Statement No 1 of 2016: Interlocutory Appeals and Reserved Questions of Law in Criminal Proceedings (provided at end of chapter).

Right to appeal interlocutory decision [5.20]

Section 295 of the CPA states:

(1) This section applies to a criminal proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence. (2) Subject to this section, a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceedings if the Court of Appeal gives the party leave to appeal.

The right of appeal would therefore not apply to any review of a decision of a magistrate in the course of proceedings in the Magistrates’ Court of Victoria. 2014); A Field, “Interlocutory Appeals: An Efficient Justice System” (2016) 90 Law Inst J 36. In NSW a system of interlocutory appeals had been operating since 1987. For a history of the NSW interlocutory appeals system since 1987, see New South Wales Law Reform Commission, Criminal Appeals, Report 140 (March 2014) at [11.3]ff. For a discussion of how the NSW provisions influenced the Victorian model, see Victorian Department of Justice, Criminal Procedure Act 2009 Manual (2009) Ch 6. 2 R v Elliot (1996) 185 CLR 250; [1996] HCA 21 at 257 (CLR). 3 Tuite v The Queen (No 2) [2015] VSCA 180 at [1].

[5.40]

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187

Who can appeal? [5.30] The prosecution as well as the accused can commence an appeal.4 An accused can include a corporation.5

What is an interlocutory decision? [5.40] Section 3 of the CPA defines an interlocutory decision as: “a decision made by a judge in a proceeding referred to in section 295(1), whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceedings”. This is an extremely broad definition and can cover an unlimited number of decisions relating to procedure, evidence or substantive law.6 The breadth of the definition is, however, tempered by the statutory strictures applicable to interlocutory appeals. An interlocutory decision can be made before the trial commences or after the trial has commenced. (A trial commences when the accused is arraigned in the presence of the jury panel.)7 The inclusion of a decision to grant a permanent stay of proceedings is significant because in Smith v The Queen8 the High Court held that the Victorian Court of Appeal did not have jurisdiction to hear and determine an appeal by the Director of Public Prosecutions (“DPP”) against the decision of a trial judge to grant a permanent stay of proceedings.9 4 The Victorian DPP has produced a detailed policy in respect to interlocutory appeals which provides some guidance for practitioners: Office of Public Prosecutions Victoria, DPP Prosecutions Policies, Policy 27, “Interlocutory Appeals” (30 June 2010). 5 Linfox Resources Pty Ltd v The Queen (2010) 30 VR 507; [2010] VSCA 319. In 2010 and 2011 there were 37 appeals, in 2012 there were 16, and in 2013 there were nine such appeals.5 In 2014 the Court of Appeal determined 13 interlocutory appeals, 11 of which were appeals by the accused and two were appeals by the prosecution; none of the appeals by the accused succeeded whilst the two Crown appeals did succeed. 6 Wells v The Queen (No 2) [2010] VSCA 294 at [42]. A list of topics which have been the subject of interlocutory appeals is provided by R Edney, “Interlocutory Appeals in Victoria: Existing Jurisprudence and Likely Future Trends” (Paper, Foley’s List, Victorian Bar, 13 February 2014) pp 8–12. 7 CPA s 210. 8 Smith v The Queen (1994) 181 CLR 338; [1994] HCA 60. 9 Smith v The Queen (1994) 181 CLR 338; [1994] HCA 60. The High Court held that the Full Court of the Supreme Court of Victoria erred in construing s 14(3) of the Supreme Court Act 1986 (Vic) as permitting an appeal by the DPP against the decision of a trial judge to grant a permanent stay. Section 14(3) was subsequently replaced by s 17A(3) of the Supreme Court Act 1986 (Vic). An example of an interlocutory appeal against the decision of the trial judge to grant a permanent stay is R v FJL (2014) 41 VR 572; [2014] VSCA 57 where the trial judge granted a permanent stay of multiple counts of indecent assault on a child under the age of 16. The accused was charged on 27 November 2008 and committed to stand trial on 24 July 2009, but the trial did not commence until 20 January 2014. The alleged offending occurred some 36–38 years previously. The trial judge ruled that the forensic disadvantage to the accused (because of the effluxion of time) could not be remedied by directions to the jury. The DPP appealed against this decision. The Court

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Section 295 of the CPA has thus extended the scope of appeals by the DPP. An interlocutory decision includes a decision of the trial judge not to recuse.10

Is a decision to uphold a “no case” submission an interlocutory decision? [5.50] An interlocutory decision does not include a decision of the trial judge to uphold a “No Case” submission. In DPP v Singh11 the Victorian Court of Appeal held that although the definition of interlocutory appeal is indeed wide, there is no indication in the statute or the Explanatory Memorandum to suggest it includes an appeal from a decision to uphold a “no case” submission.12 In Singh the court stated that to include such a decision in the definition of interlocutory decision would be to give the prosecution the right to appeal against an acquittal, and that to construe s 3 of the CPA as including such a decision would “effect a fundamental change to the criminal justice system”.13 The court stated that a decision to uphold a no-case submission is not an interlocutory decision and cannot be the subject of an interlocutory appeal.14

Initial contact with registry of Court of Appeal [5.60] As soon as reasonably practicable following the interlocutory decision, but prior to the formal commencement of the appeal, the applicant should contact the registry of the Court of Appeal by phone or by email.15

of Appeal held that the trial judge had erred because the forensic disadvantage could be remedied by appropriate measures (eg exclusion of uncharged acts, detailed directions to the jury, and severing of the indictment): at [13]. Note that in this case if an interlocutory appeal was not available the accused would have been discharged. In Hermanus (A Pseudonym) (2015) 44 VR 335 the court refused an interlocutory appeal to challenge the decision of the trial judge not to order a permanent stay. 10 GP v The Queen (2010) 27 VR 632; [2010] VSCA 142. 11 DPP v Singh (2012) 34 VR 364; [2012] VSCA 167. 12 DPP v Singh (2012) 34 VR 364; [2012] VSCA 167 at [7]. 13 DPP v Singh (2012) 34 VR 364; [2012] VSCA 167 at [7].The court referred to DPP v Garde-Wilson (2006) 15 VR 640; [2006] VSCA 295 and R v Cheng (1999) 48 NSWLR 616; [1999] NSWCCA 373 for analogous cases where the courts have refused to read into a statute any change to the common law principle of double jeopardy. 14 DPP v Singh (2012) 34 VR 364; [2012] VSCA 167 at [10]. 15 See [email protected]. See also Supreme Court of Victoria, Practice Statement No 1 of 2016, Pt 4.1.

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Certification by trial judge [5.70] Before a party can seek leave to appeal an interlocutory decision the trial judge must provide certification that the particular decision is, in effect, appropriate for an interlocutory appeal.16 Section 295(3) and (4) of the CPA provide that a party may not seek leave to appeal an interlocutory decision unless the trial judge certifies one of the following: (a) if the interlocutory decision concerns the admissibility of evidence, that the evidence if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and (b) if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and (c) if the interlocutory decision is made after the trial commences, either – (i) that the issue that is the subject of the purported appeal was not reasonably able to be identified before the trial; or (ii) that the party was not at fault in failing to identify the issue that is the subject of the proposed appeal. (4) A request for certification under subsection (3) must be determined as soon as practicable after the request is made.

For proceedings in the County Court, detailed instructions on the certification procedure are provided in the County Court Criminal Division Practice Note PNCR 1-2015, Chs 21 and 22. For proceedings in the County Court, Form 2H is used17 and the judge’s decision regarding certification must be recorded in the records of the court.18 General principles applicable to certification decision [5.80] In deciding whether the particular decision is suitable for certification, the following general principles provide some guidance: • If the judge does certify, he or she should provide sufficient reasons.19 • If the proposed grounds of appeal are hopeless, the judge should not certify.20

16 For an overview of the certification process, see D Tedhams, “Jurisprudence on Interlocutory Appeals and Reserved Questions of Law Under “Sections 295–97 and 302 of the Criminal Procedure Act 2009” (“CPA”)” (2015) Court of Appeal Registry (April 2015). 17 County Court Criminal Procedure Rules 2009 r 2.11. 18 County Court Criminal Procedure Rules 2009 r 2.11. 19 CGL v DPP (No 2) (2010) 24 VR 482; [2010] VSCA 24; Dillon (A Pseudonym) v The Queen [2014] VSCA 164 at [41]; DPP v BB (2010) 29 VR 110. 20 McDonald v DPP (2010) 26 VR 242; [2010] VSCA 45 at [15]–[17].

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• If the trial is likely to be short, any savings of the court’s resources are likely to be minimal and as such, should be given minimal importance in deciding whether to certify.21 • Where no trial is at risk, the judge should not certify.22 • Because the parties agree that the decision is appropriate for an interlocutory appeal is not sufficient reason for the trial judge to certify.23 Further source Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.4.3. Decisions ruling evidence inadmissible: s 295(3)(a) [5.90] Where the interlocutory decision concerns the admissibility of evidence, the key test the trial judge should apply in determining whether to certify is as follows: “Is this evidence of such significance or so essential that its exclusion would eliminate or substantially weaken the prosecution case?”24 The phrase “substantially weaken the prosecution case” should be approached in terms of asking if “that would be the effect”, assuming the evidence was left to the jury and the jury accepted it.25 It is not sufficient that the prosecution case would be “significantly” weakened. The evidence must be central or of major importance to the prosecution case.26 For the prosecution, one way to determine if CPA s 295(3)(a) is satisfied is to ask whether a nolle prosequi would be entered if the impugned evidence was excluded.27 However, an accused could also rely on s 395(3)(a) where, for example in a case where the only evidence against an accused is a disputed confession which a trial judge had ruled to be admissible, an interlocutory appeal by the accused would be available.28 21 MA v The Queen (2011) 31 VR 203; [2011] VSCA 13 at [9]. In MA, Redlich J stated that very weighty consideration should be given to this factor by the Court of Appeal: at [10]. See also DPP (Cth) v FM (2013) 233 A Crim R 83; [2013] VSCA 129 at [54]. 22 Stannard v DPP (2010) 28 VR 84; [2010] VSCA 165. 23 DPP v BB and QN [2010] VSCA 211. 24 CGL v DPP (No 2) (2010) 24 VR 482; [2010] VSCA 24 at [5]–[6] per Maxwell P, followed in MA v The Queen (2011) 31 VR 203; [2011] VSCA 13 at [3]. See also DPP v Brownlie and Brownlie (a Pseudonym) (No 2) [2015] VSCA 267. 25 ZL v The Queen (2010) 208 A Crim R 325 at [19], adopting the test in R v Shamouil (2006) 66 NSWLR 228 at [40]. 26 In applying CPA s 295(3)(a) the trial judge has to evaluate the strength of the remainder of the prosecution case, if the impugned evidence was excluded. In most cases it should be clear whether or not the entire prosecution case would be eliminated or substantially weakened. However, in some cases this exercise may be difficult – eg where the prosecution case is based mainly or entirely on circumstantial evidence. 27 CGL v DPP (No 2) (2010) 24 VR 482; [2010] VSCA 24 at 483 (VR) [8]. 28 P Priest, “Appeals in Criminal Cases″ in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (subscription service, Thomson Reuters) Vol 3 2016 at [3.3.1530]..

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The Court of Appeal has made it clear that trial judges are expected to exercise vigilance in deciding whether to certify under s 295(3)(a).29 This approach is not surprising given the fundamental premise that interlocutory appeals are not to be the norm and should be reserved for unusual cases. Further sources P Priest, “Appeals in Criminal Cases″ in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (subscription service, Thomson Reuters) Vol 3 2016 at [3.3.1530]. Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.4.3.2. Decisions “otherwise of sufficient importance”: s 295(3)(b) [5.100] According to CPA s 295(3)(b), if a decision does not concern the admissibility of evidence, the judge must certify that the decision is “otherwise of sufficient importance to the trial” to justify an appeal.30 If the appeal concerns a routine evidentiary ruling, it is not likely to be suitable for an interlocutory appeal. In DPP v Pace, Collins and Baker (pseudonyms)31 the Court of Appeal stated that: the already overloaded system of criminal justice in this State simply cannot cope with, and should not have to tolerate, interlocutory appeals directed to issues of little moment.32

Where a cross-admissibility question is bound up with the decision whether to order a separate trial, the judge should treat the matter as governed by CPA s 295(3)(b).33 Note that if the trial has commenced, the additional stringent requirements in CPA s 295(3)(c) must also be met. If the interlocutory decision was made after the trial has commenced, the trial judge must certify that the issue was not reasonably able to be identified before the trial, or that the requesting party was not at fault in failing to identify the issue that is the subject of the proposed appeal. A request for certification under s 295 must be determined as soon as practicable after the request is made.34 It can be seen that the trial judge acts as the first level of filter to exclude cases which do not satisfy CPA s 295(3). This first level of filter is critical to the operation of interlocutory appeals as a whole because of the potential danger that the Court of Appeal will be inundated with unmeritorious appeals. 29 CGL v DPP (No 2) (2010) 24 VR 482; [2010] VSCA 24 at 483 (VR) [5]. 30 For New South Wales decisions discussing the equivalent to CPA s 295(3)(b), see, eg, R v Lethlean (1995) 83 A Crim R 197 at 206; Petroulias v The Queen (2007) 73 NSWLR 134. 31 DPP v Pace, Collins and Baker (pseudonyms) [2015] VSCA 18. 32 DPP v Pace, Collins and Baker (pseudonyms) [2015] VSCA 18 at [26]. 33 PNJ v DPP (2010) 27 VR 146 at 153 [33]. 34 CPA s 296(4).

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[5.110]

Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1540]. Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.4.3.3. Certification refused [5.110] If the trial judge refuses to certify, the applicant has a right to apply to the Court of Appeal for review of that refusal.35 The procedure for an application to review is dealt with below at [5.200]. Certification granted [5.120] If the trial judge certifies that the decision is suitable for an interlocutory appeal, the next stage is the determination of the application for leave to appeal.

Test to determine application for leave to appeal [5.130]

Under the CPA s 297(1) and (2):

(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the Court is satisfied that it is in the interests of justice to do so, having regard to – (a) the extent of any disruption or delay to the trial process that may arise if leave is given; (b) whether the determination of the appeal against the interlocutory decision may – (i) render the trial unnecessary; or (ii) substantially reduce the time required for the trial; or (iii) resolve an issue of law, evidence or procedure that is necessary for the conduct of the trial; or (iv) reduce the likelihood of a successful appeal against conviction in the event the accused is convicted at trial; and (v) any other matter that the court considers relevant. (2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.

Section 297(2) of the CPA reflects the common law concern with fragmentation of criminal proceedings, and indicates that it will, in general, be more difficult to obtain leave to appeal after, compared to before, the trial has commenced. Indeed, the desirability of avoiding fragmentation of criminal proceedings is an important overall consideration for the Court of Appeal in all interlocutory appeals.36 35 CPA s 296(1). If the single Appeal Judge refuses leave to appeal, the applicant has a right to renew the application before two or more Appeal Judges pursuant to CPA s 315(2). 36 DPP v Pace, Collins and Baker (pseudonyms) [2015] VSCA 18 at [24].

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Note that if it is not “in the interests of justice” to grant leave, then under CPA s 197 the discretion of the court is not enlivened. The overriding consideration is thus whether it is in the interests of justice to grant leave to appeal.37 Clearly, a key factor here is whether the accused has had a trial according to law. There are, however, many reasons why it may not be in the interests of justice to grant leave to appeal. These provisions are the key to why interlocutory appeals have been introduced. The object is clearly to increase the overall efficiency of the criminal process by “bringing forward” critical issues before, rather than after, the trial concludes. In a sense, appeals against conviction can now be heard prior to the actual conviction. Conversely, the prosecution is able to appeal the grant of a permanent stay, which otherwise would result in the end of the matter. Interlocutory appeals thus offer very significant advantages to both parties. The down side of this procedure is the disruption and fragmentation that necessarily follow from the commencement of an appeal. Indeed, if the trial has commenced when the appeal is sought, the Court of Appeal must not give leave to appeal unless the reasons for doing so clearly outweigh any disruption to the trial. Note the generality of the phrase “interests of justice” in CPA s 297(1). This phrase includes the interests of the accused, the interests of the prosecution and the interests of the community, in the fair and efficient administration of criminal justice. In some cases the interests of justice means the avoidance of a miscarriage of justice. Further source P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1560]. Leave granted [5.140] If leave to appeal is granted, the appeal itself is subsequently heard and determined. Note that on the hearing of the application for leave, the court can hear and determine the appeal itself.38 Leave refused [5.150] If leave to appeal is refused, the interlocutory appeal process is concluded. Refusal of leave not to preclude further appeal [5.160]

Under CPA s 297(3):

37 CJD v The Queen [2012] VSCA 329 at [19]. 38 Supreme Court (Criminal Procedure) Rules 2008 r 3.06(1).

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[5.170]

If the Court of Appeal refuses leave to appeal under this section, the refusal does not preclude any other appeal on the issue that was the subject of the proposed appeal.

If the accused is convicted, he or she retains normal appeal rights regarding the conviction and the sentence, and can reargue the grounds of the interlocutory appeal at a post-trial conventional appeal.39 In Tuite v The Queen (No 2) the court stated: Indeed, an accused can still appeal against conviction even if this Court, on an interlocutory appeal, refuses leave to appeal. That refusal of leave is not determinative, and can, in effect, be “reversed” by this Court on a subsequent appeal.40

However, His Honour Priest JA notes that s 297(3) does not deal with the situation where leave is granted. His Honour states: It may be predicted, however, that the Court of Appeal will be reluctant to permit re-agitation on an appeal following conviction, of the same or similar subject matter of an interlocutory appeal.41

Test to determine appeal [5.170]

Assuming leave to appeal has been granted, under CPA s 300(1):

An appeal against an interlocutory decision is to be determined on the basis of the evidence, if any, given in the proceedings to which the appeal relates, unless the Court gives leave to adduce additional evidence.

Additional evidence would only be permitted in exceptional circumstances and only where the evidence constitutes “fresh evidence”.42 An interlocutory appeal is thus an example of a rehearing where the focus is whether the trial judge has erred in the decision being appealed. The approach taken by the Court of Appeal in determining the appeal depends on the basis of the appeal. If the appeal is from the exercise of a judicial discretion, the principles in House v King43 will apply and the appellant must show, for example, that the trial judge took into account an irrelevant consideration, or failed to take into account a relevant consideration.44 Chapter 1 of this book (at [1.890]) sets out in detail the principles from House v The King. An example here would be an appeal against the decision of the trial judge to admit (or exclude) evidence under s 137 of the Evidence Act 2008 39 KRI v The Queen (2011) 207 A Crim R 552; [2011] VSCA 127 at [66]. 40 Tuite v The Queen (No 2) [2015] VSCA 180 at [32]. 41 P Priest, “Appeals in Criminal Cases″ in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (subscription service, Thomson Reuters) Vol 3 2016 at [3.3.1565]. 42 SLS v The Queen (2014) 42 VR 64; [2014] VSCA 31 at [116]. 43 House v The King (1936) 55 CLR 499; [1936] HCA 40. 44 McCartney v The Queen (2012) 38 VR 1; [2012] VSCA 268 at [46]–[48], referring to KJM v The Queen (No 2) (2011) 33 VR 11; [2011] VSCA 268.

[5.200]

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(Vic). This is quite a different approach to that taken by the Court of Appeal on an appeal against conviction or sentence where the court can review the whole of the evidence. If the decision being appealed against is not of a discretionary nature, the Court of Appeal will decide the admissibility issue for itself.

Orders available on successful appeal [5.180] Under CPA s 300(2) and (3), on an appeal under CPA s 295, the Court of Appeal – (a) may affirm or set aside the interlocutory decision; and (b) if it sets aside the interlocutory decision – (i) may make any other decision that the Court of Appeal considers ought to have been made; or (ii) remit the matter to the court which made the interlocutory decision for determination. (3) If the Court of Appeal remits a matter under subsection (2)(b)(ii) – (a) it may give directions concerning the basis on which the matter is to be determined; and (b) the court to which the matter is remitted must hear and determine the matter in accordance with the directions, if any.

In summary, at the conclusion of the hearing of the appeal the Court of Appeal can: 1. affirm the interlocutory decision; 2. set aside the interlocutory decision and remit the matter back to the trial judge; or 3. set aside the interlocutory decision and make a new decision.

Urgent interlocutory appeal [5.190] The CPA does not distinguish between “urgent” and “nonurgent” interlocutory appeals. Under Pt 7 of the Supreme Court Practice Statement No 1 of 2016, “Interlocutory Appeals in Criminal Proceedings”, the Registrar will determine the urgency of the matter and make suitable arrangements for the listing of the matter. Pursuant to Pt 4 of the Practice Statement, the intending applicant should contact the registry as soon as practicable following the judge’s decision regarding certification. The provisions of the Practice Statement (discussed below) apply to all interlocutory appeals, including urgent interlocutory appeals. This reflects the important role played by the Registrar of Criminal Appeals in interlocutory appeals and in criminal appeals in general.

What happens if trial judge refuses to certify? Right to apply for review of refusal [5.200] If the judge refuses to certify that one of the grounds in CPA s 295(3) is satisfied, the party requesting certification may apply to the Court of Appeal for a review of the decision. Section 296 of the CPA states:

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[5.210]

If a judge refuses to certify under section 295(3), the party which requested certification may apply to the Court of Appeal, in accordance with the rules of court, for review of the decision.45

Section 296 only provides a right to apply for a review. The Court of Appeal can of course refuse the application. Priest J notes there is a distinction between a refusal to certify and a failure to certify (for example, failing to certify after a reasonable period of time). If the judge fails to certify after a reasonable period of time, it may be that there is no appeal mechanism to review the failure.46 A decision to certify cannot be the subject of a review.47 Procedure on application for review Notice of application for review [5.210] Under s 296(2) of the CPA, “[a]n application for review under subsection (1) is commenced by filing a notice of application for review in accordance with the rules of court”. The Notice of Application to Review the refusal is in Form 6-3B.48 The notice for review must set out in precise terms the grounds of the application49 and must be signed by the applicant or their legal representative. A Notice of Application for Leave to Appeal (Form 6-3A) should also be filed at the same time.50 The notice should be signed by the applicant and filed electronically with the Court of Appeal registry. Summary of contentions [5.220] The Registrar will usually require each party to file and serve a Summary of Contentions.51 Ordinarily the applicant will file and serve first. The Summary of Contentions should: (a) outline the contentions relied upon in argument before the judge prior to the making of the interlocutory decision; (b) separately outline any additional contentions sought to be relied upon; and (c) refer to relevant authorities.52

The Summary of Contentions should not exceed five pages. 45 See, eg, Peterson (a Pseudonym) v The Queen [2014] VSCA 111; Vasiliou v The Queen [2014] VSCA 22. 46 P Priest, “Appeals in Criminal Cases″ in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (subscription service, Thomson Reuters) Vol 3 2016 at [3.3.1550]. 47 DPP v MD (2010) 29 VR 434 at 436. 48 Supreme Court (Criminal Procedure) Rules 2008 r 3.04(1). 49 Supreme Court (Criminal Procedure) Rules 2008 r 3.04(2). 50 Supreme Court, Practice Statement No 1 of 2016, Pt 6.3 (in the event that the application for review is granted). 51 Court of Appeal, Practice Statement No 1 of 2016, s 8.3. 52 Court of Appeal, Practice Statement No 1 of 2016, s 8.4.

[5.270]

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Time limits for commencing application for review [5.230] Under CPA s 296(2) the application for review must be filed in accordance with the following provisions: (a) subject to paragraph (b), if the trial has not commenced when the judge refuses to certify, within 10 days after the day on which the judge refuses to certify, or any extension of that period granted under section 313; or (b) if the trial commences within 10 days after the day on which the judge refuses to certify, within 2 days after the day on which the trial commences or any extension of that period granted under section 313; or (c) if the trial has commenced when the judge refuses to certify, within 2 days of the day the judge refuses to certify or any extension of that period granted under section 313.

Each of these time limits can be extended by the Court of Appeal or the Registrar pursuant to CPA s 313. Service of copy of application for review [5.240] Under CPA s 296(3) a copy of the notice of application for review (Form 6-3B) and a copy of the notice of application for leave (Form 6-3A) must be served on the respondent (in accordance with CPA s 392 or 394), within the above time set for filing the application, or any extension of time granted under CPA s 313. The applicant (not the registry) must serve the notice. Who grants application for review? [5.250] Under s 315(1)(b) of the CPA a single judge of the Court of Appeal can determine the application for review. If the single judge refuses the application for review, the applicant can elect to have the application reheard by two or more Judges of Appeal.53 Role of Registrar [5.260] The Registrar will determine the urgency of the application and set a hearing date.54 The Registrar notifies the trial judge of the hearing date.55 Application for review treated as hearing of review [5.270] The Court of Appeal can treat the hearing of the application for review as the hearing of the review itself.56 If the Court of Appeal grants leave to appeal (following the review), the notice of application for review is sufficient notice of appeal.57 53 CPA s 315(2). 54 Supreme Court, Practice Statement No 1 of 2016, Pt 7.1. 55 Supreme Court, Practice Statement No 1 of 2016, Pt 7.4. 56 Supreme Court (Criminal Procedure) Rules 2008 r 3.06(1). 57 Supreme Court (Criminal Procedure) Rules 2008 r 3.06(2).

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[5.280]

Test to determine application for review [5.280]

Under s 296(4) of the CPA:

On a review under subsection (1), the Court of Appeal – (a) must consider the matters referred to in section 295(3); and (b) if satisfied as required by section 297, may give the applicant leave to appeal against the interlocutory decision.

In Tuite v The Queen (No 2) the court stated: “No doubt, an application for review involves a submission that the decision under review was somehow flawed.”58 The Court of Appeal thus determines the issue of certification afresh by reconsidering the same factors set out in s 295(3) that the trial judge considered, and if satisfied of the test set out in s 297 of the CPA, may grant leave to appeal the interlocutory decision. The Court of Appeal will not lightly overturn the decision of a trial judge to refuse to certify.59 Further sources P Priest, “Appeals in Criminal Cases″ in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (subscription service, Thomson Reuters) Vol 3 2016 at [3.3.1550]. Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.4.3.5.

Procedure on application for leave to appeal interlocutory decision [5.290] The following flow chart sets out the overall procedure on an application for leave to appeal. This flow chart is from the Court of Appeal Practice Statement No 1 of 2016. The permission of the Registrar of the Court of Appeal to reproduce the chart is acknowledged.

58 Tuite v The Queen (No 2) [2015] VSCA 180 at [23]. 59 Kumar v DPP [2013] VSCA 297 at [24].

[5.290]

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200

Criminal Appeals and Reviews in Victoria

[5.300]

Notice of application for leave to appeal [5.300] Assuming the trial judge has certified that the decision in question is suitable for an interlocutory appeal (or, on an application to review the refusal of the trial judge to certify, the Court of Appeal has granted the application and given leave to appeal), the interlocutory appeal is commenced by filing a Notice of Application for Leave to Appeal in accordance with the rules of the court.60 The form is signed by the applicant and filed electronically with the Court of Appeal registry. Order 3 of the Supreme Court (Criminal Procedure) Rules 2008 applies to interlocutory appeals. Under r 3.03(1) a Notice of Application for Leave to Appeal is in Form 6-3A, and must be filed with the Registrar of Criminal Appeals. The notice must set out in precise terms the grounds of the appeal.61 The Court of Appeal can treat the application for leave to appeal or leave to review, as the appeal itself and the Notice of Application for Leave to Appeal are considered to be sufficient notice of appeal.62 A separate notice of appeal is not required.

Summary of contentions [5.310] The Registrar will usually require each party to file and serve a Summary of Contentions.63 Ordinarily the applicant will file and serve first. The Summary of Contentions should: (a) outline the contentions relied upon in argument before the judge prior to the making of the interlocutory decision; (b) separately outline any additional contentions sought to be relied upon; and (c) refer to relevant authorities.64

The Summary of Contentions should not exceed five pages. The applicant should also file and serve a List of Authorities to be relied on at the hearing of the appeal.65

60 CPA s 298. 61 Supreme Court (Criminal Procedure) Rules 2008 r 3.03(2). 62 Supreme Court (Criminal Procedure) Rules 2008 r 3.06.1. 63 Court of Appeal, Practice Statement No 1 of 2016 s 8.3. 64 Court of Appeal, Practice Statement No 1 of 2016 s 8.4. 65 Court of Appeal, Practice Statement No 1 of 2016 s 11.

[5.350]

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Affidavit in support [5.320] After filing the notice of application, the applicant must file an affidavit stating “the acts, facts, matters and circumstances” relating to the order, grounds of appeal, and why leave to appeal should be granted.66 However, the Court of Appeal has advised that: Unless actually directed to do so no affidavit in the form specified in Rule 3.05 will be required to be filed and served. Instead of requiring such an affidavit the Registrar will usually direct that the parties file an agreed document setting out a succinct narrative history of the conduct of the matter to date.67

Who determines application for leave to appeal? [5.330] A application application application

single judge of the Court of Appeal can determine an for leave to appeal.68 If the single judge refuses the for leave to appeal, the applicant can elect to have the reheard by two or more Judges of Appeal.69

Time limits on application for leave [5.340] Section 298(1) of the CPA provides that the application for leave to appeal must be commenced within the following time limits: (a) if the trial has not commenced, then within 10 days after the interlocutory decision is made or any extension of that time granted under CPA s 313; or (b) if the trial commences within 10 days of the interlocutory decision being made, within 2 days after the commencement of the trial, or any extension of time granted under CPA s 313; or (c) if the trial has commenced when the interlocutory decision is made, within 2 days after the interlocutory decision was made or any extension of that time granted under CPA s 313.

Application to apply out of time [5.350] An application to extend the time for filing an application for leave to appeal, or an application to review the refusal of the trial judge to certify, is made pursuant to CPA s 315(1)(d). A single judge of Appeal can determine the application. If the Judge refuses the application to extend time then, pursuant to CPA s 315(2), a further application to extend time can be made to the Court of Appeal consisting of two or more Judges of Appeal. 66 Supreme Court (Criminal Procedure) Rules 2008 r 3.05(1). The Court of Appeal has a discretion whether to require the affidavit in support. 67 Court of Appeal, Practice Statement No 1 of 2016 s 8.2. 68 CPA s 315(1)(a). 69 CPA s 315(2).

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[5.360]

Service of notice of application for leave [5.360] A copy of the notice of appeal (Form 6-3A) must be served on the respondent in accordance with CPA s 393 or 394, as required within the time permitted for filing the notice.70 The applicant (not the registry) is required to serve the notice.

Role of Registrar [5.370] After the notice and other documents have been filed, the Registrar then determines a hearing date and notifies the trial judge of the date.71 The Registrar also obtains a copy of the transcript and any documents referred to or relied on at the time of submissions at the trial.72

Hearing of application for leave to appeal [5.380] In DPP v Pace, Collins and Baker (pseudonyms)73 the Court of Appeal stated: Thus, in our view, without seeking to be overly prescriptive, leave to appeal an interlocutory decision should not readily be granted and should only be granted if, for example, it can clearly be discerned that there has been some error of principle which may lead justice to miscarry, or which may be permeated unless corrected.74

On hearing the application for leave to appeal, the court can treat the application as the hearing of the appeal.75 Nature of appellate review of interlocutory decision compared to final appellate review of conviction [5.390] Appellate review of an interlocutory decision differs from final appellate review of a conviction in several important respects. In McCartney v The Queen76 the court explained the difference where the subject matter of the appeal is a question of evidence: The position of a court hearing an appeal against conviction is, of course, quite different from that of a court hearing an interlocutory appeal before the trial commences. Leaving aside the “unsafe and unsatisfactory” ground, an appeal against conviction will only succeed if it is established that: (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. 70 CPA s 298(2). 71 Court of Appeal, Practice Statement No 1 of 2016 s 7 72 Court of Appeal, Practice Statement No 1 of 2016 ss 9 and 10.1. 73 DPP v Pace, Collins and Baker (pseudonyms) [2015] VSCA 18. 74 DPP v Pace, Collins and Baker (pseudonyms) [2015] VSCA 18 at [25]. See also R v Stig (unreported, NSW CCA, 17 October 1996). 75 Supreme Court (Criminal Procedure) Rules 2008 r 3.06. It is expected that trial counsel will appear at the hearing. 76 McCartney v The Queen (2012) 38 VR 1; [2012] VSCA 268.

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On the appeal against conviction, the appeal court is able to review the record of the relevant evidence as actually presented to the jury and can assess, in the context of the trial as a whole, whether there was a danger of unfair prejudice to the accused and, if so, whether it outweighed the probative value of the evidence. The question is whether the decision of the trial judge not to exclude the evidence under s 137 was “an error … in or in relation to the trial” and, if so, whether it was productive of a substantial miscarriage of justice. That question can only be answered by considering the trial in its entirety. Obviously enough, the legal character of a decision under s 137 remains the same whether the decision falls to be examined at the interlocutory appeal stage or after the trial is concluded. But that does not, in our view, preclude the adoption of a different standard of appellate review on a conviction appeal from that which applies to an interlocutory appeal. Such a difference of approach is to be explained by the different functions, and perspectives, of the appeal court at those different stages of the proceedings. It is also to be explained – perhaps decisively – by what the Court in KJM identified as the clear intention of the Criminal Procedure Act that interlocutory appeals on questions of evidence “should be strictly confined”. No such constraint applies to appeals against conviction.77

In Tuite v The Queen (No 2) the court made the following distinction: It must also be remembered that the criteria for dealing with questions of admissibility on an interlocutory appeal are quite different to those that apply to an appeal by way of a final hearing. Whereas House v The King principles apply to interlocutory appeals, they do not apply to final hearings. Accordingly, it is entirely possible to reject an appeal on a point of evidence applying the House principles, but to allow that appeal, at a later stage, by asking simply whether the decision below was correct.78

Can leave to appeal be granted when trial judge has correctly refused to certify under s 395(3)? [5.400] In Tuite v The Queen (No 2)79 the applicant sought leave to appeal pursuant to s 297 of the CPA, whilst acknowledging that the trial judge had correctly refused to certify under CPA s 296(3). The Court of Appeal identified the following jurisdiction question: The jurisdictional question that arises is whether, on a review of a judge’s refusal to certify, which refusal the Court finds was plainly correct, it is still possible for the applicant to bypass the certification criteria set out in s 295(3), and move directly to an application for leave to appeal. In other words, can one simply ignore the fact that the judge correctly refused to certify, and nonetheless proceed to seek leave to appeal under s 297(1) merely because it is said to be in the “interests of justice” that such leave be granted?

The court stated: 77 McCartney v The Queen (2012) 38 VR 1; [2012] VSCA 268 at [49]–[51]. See also R v DG (2010) 28 VR 127. 78 Tuite v The Queen (No 2) [2015] VSCA 180 at [33] (footnotes omitted). See also AL v The Queen [2014] VSCA 81 at [12]. 79 Tuite v The Queen (No 2) [2015] VSCA 180.

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[5.410]

There is, at the very least considerable doubt as to whether this application is competent. However, it is unnecessary in the present circumstances finally to determine that point. That is because, as will be seen, this is clearly a case in which the interests of justice do not warrant a grant of leave to appeal.80

General principles on applications for leave to appeal [5.410] The following general principles can be discerned from the cases to date regarding the factors the Court of Appeal considers relevant in deciding whether to grant leave to appeal an interlocutory decision:81 • Interlocutory appeals should not be considered the norm and should be reserved for unusual cases where the factors set out in s 297 are at play.82 • An application for leave should not be brought to answer hypothetical matters and when “[t]here are no concrete questions, or proposed answers, before the Court which can be the subject of detailed submissions and careful scrutiny.”83 • The later the trial is in its proceedings, the less appropriate is an application for an interlocutory appeal.84 • Leave will not normally be granted where the evidentiary ruling involved the exercise of the trial judge’s discretion.85 • If the trial judge’s ruling is only interim, then an interlocutory appeal is not appropriate.86 • A decision to discharge a jury will rarely be appropriate for an interlocutory appeal.87 • A ruling which casts doubt on the viability of the Crown case is appropriate for appeal.88 • Leave may be granted where the case depends entirely upon the disputed evidence.89 • The fact that the trial judge has certified the case as suitable for appeal does not create a presumption that the Court of Appeal should grant leave to appeal.90 80 Tuite v The Queen (No 2) [2015] VSCA 180 at [34]. 81 See D Tedhams, “Jurisprudence on Interlocutory Appeals and Reserved Questions of Law Under Sections 295-97 and 302 of the Criminal Procedure Act 2009 (“CPA”)” (2015) Court of Appeal Registry (April 2015). 82 DPP v Pace, Collins and Baker (pseudonyms) [2015] VSCA 18 at [25]. 83 Tuite v The Queen (No 2) [2015] VSCA 180 at [40]. 84 ML v The Queen [2011] VSCA 193 at [13]–[15]. 85 MA v The Queen (2011) 31 VR 203 at 207. 86 KJM v The Queen [2011] VSCA 151 at [4]. 87 Dertilis v The Queen [2010] VSCA 360 at [17]. This issue can be dealt with on an appeal against conviction. 88 DPP v Karabegovic (2013) 41 VR 319; 282 FLR 383; [2013] VSCA 380 at 385 (FLR). 89 THD v The Queen [2010] A Crim R 106. 90 Singh v The Queen (2011) 33 VR 1; [2011] VSCA 263 at 8 (VR) [35]; R v Naidu [2010] VSCA 265 at [48].

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• If the jury is considering its verdict and an application is made for leave to appeal an interlocutory appeal, it will be rare for the Court of Appeal to grant leave to appeal.91 • It would be a rare case where the correctness of a decision made on an appeal against conviction would be permitted on a pre-trial application.92 Further source Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.4.3.4. Leave refused [5.420] If leave is refused, that is the end of the application. The refusal of leave does not, however, preclude a later appeal relating to the same issue dealt with on the interlocutory appeal.93 Leave granted [5.430] If leave is granted, the next stage is for the Court of Appeal to hear and determine the appeal. In some cases the court can determine the appeal at the same time as granting leave to appeal.94 If the Court of Appeal gives leaves to appeal after the trial has commenced, the judge must adjourn the trial without discharging the jury, if reasonably practicable, until the appeal has been determined.95

Hearing of the appeal Hearing based on evidence at trial [5.440] Under s 300(1) of the CPA the Court of Appeal determines the appeal “on the evidence, if any, given in the proceeding to which the appeal relates, unless the Court gives leave to adduce additional evidence”. The task of the Court of Appeal is to determine if there is error in the interlocutory decision. General principles on appeal [5.450] The following general principles apply to the appeal: • If the point of law which is the subject of the interlocutory appeal was not argued before the trial judge, it would be an abuse of the interlocutory process for the appeal to proceed.96 91 ML v The Queen [2011] VSCA 193. 92 DPP v Karabegovic (2013) 41 VR 319; 282 FLR 383; [2013] VSCA 380 at [4]. 93 CPA s 297(3). 94 Supreme Court (Criminal Procedure) Rules 2008 r 3.06(1). 95 CPA s 299. 96 R v Chaouk (2013) 40 VR 356; [2013] VSCA 99 at [35]; DPP v BDX (No 2) (2010) 27 VR 536; [2010] VSCA 134. A similar approach is taken on an appeal against conviction or sentence, as discussed in Chapter 6.

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[5.460]

• On an interlocutory appeal it is generally not appropriate to include submissions relating to the Charter of Human Rights and Responsibilities Act 2006 (Vic).97 • A review of a decision relating to the admissibility of tendency evidence and coincidence evidence is governed by the principles in House v The King.98 • Avoidance of a retrial involving a child is a relevant consideration in determining an interlocutory appeal.99 • Dismissal of an interlocutory appeal against a judicial direction does not constitute endorsement of the particular words used in the direction given by the trial judge.100 • If the appeal concerns a routine evidentiary ruling (nothing out of the ordinary), the Court of Appeal will be reluctant to entertain the appeal.101 The court usually announces its decision at the conclusion of the hearing and provides reasons at a later date. Further source Judicial College of Victoria, Criminal Proceedings Manual (2016) Ch 20.4.3.7.

Appeal abandoned [5.460] An appeal against an interlocutory decision can be abandoned by using Form 6-2N.102

Costs [5.470] On an interlocutory appeal, no costs are awarded.103 However, under s 15A of the Appeal Costs Act 1998 (Vic) the accused person can seek an indemnity certificate if their interlocutory appeal is successful. The certificate can include the costs of a new trial if applicable. Under s 15B of the Appeal Costs Act 1998 (Vic) the accused person (as respondent) can 97 Wells v The Queen (No 2) [2010] VSCA 294; MA v The Queen (2011) 31 VR 203; [2011] VSCA 13; R v Chaouk (2013) 40 VR 356; [2013] VSCA 99 at [35]. Submissions relating to the Charter could result in unnecessary delays and complexities. Compare SLS v The Queen (2014) 42 VR 64 where the Court of Appeal devoted significant time to dealing with an interlocutory appeal (appeal upheld). 98 House v The King (1936) 55 CLR 499; see also KJM v The Queen (No 2) (2011) 33 VR 11; [2011] VSCA 268. 99 PJ v The Queen (2012) 36 VR 402; [2012] VSCA 36 at 404 (VR) [4]. 100 DPP v Karabegovic (2013) 41 VR 319; 282 FLR 383; [2013] VSCA 380 at 385 (FLR) [5]. 101 DPP v Pace, Collins and Baker (pseudonyms) [2015] VSCA 18 at [26]. 102 Supreme Court (Criminal Procedure) Rules 2008 r 2.40 and Court of Appeal, Practice Statement No 1 of 2016 s 13. 103 Under the CPA s 409(c) no costs are allowed to a party under CPA Pt 6.3. See R v Payara (2012) 36 VR 326. In general, costs are not awarded for or against the Crown in criminal proceedings, including criminal appeals and most interlocutory proceedings: R v Goia (1988) 19 FCR 212 at 213.

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seek an indemnity certificate on a DPP interlocutory appeal and the certificate can include the costs of a new trial if applicable.

Post-appeal procedures [5.480] The Registrar of Criminal Appeals must transmit the decision of the Court of Appeal to the trial court which made the interlocutory decision and that court must enter the decision on the court record.104

Sample forms [5.490] court.

The following forms are available from the rules of the relevant

104 CPA s 301.

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[5.500]

[5.500] Notice of application for leave to appeal an interlocutory decision: Form 6-3A. FORM 6-3A

IN THE SUPREME COURT OF VICTORIA 20 No AT The Queen v AB NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST INTERLOCUTORY DECISION To the Registrar of Criminal Appeals: I, [full name], am a party to a proceeding in the *County Court/*Trial Division of the Supreme Court for the prosecution of an indictable offence. I GIVE NOTICE THAT I wish to appeal under section 295 of the Criminal Procedure Act 2009 against the interlocutory decision made in that proceeding [state briefly interlocutory decision against which it is intended to appeal]. The ground(s) of my appeal are: [state precisely the grounds of the appeal] Date: [Signed by Appellant or legal practitioner on behalf of Appellant] 1. 2. 3. 4. 5. 6. 7. 8.

PARTICULARS Appellant’s name: Proceeding in which interlocutory decision was made: Trial Judge who made interlocutory decision: Certificate of Judge under section 295(3) of the Criminal Procedure Act 2009 who made the interlocutory decision attached? *YES/*NO. Name and address of legal practitioner who represents appellant at trial: Name of counsel (if any) who represents appellant at trial: State whether you wish to attend the hearing of this proceeding: State whether you wish to appear by audio visual link at the hearing of this proceeding.

IMPORTANT NOTES: 1. Unless the Court directs otherwise, you may, if you wish, attend Court at the hearing of your appeal, or appear by audio visual link if that is practicable. If you wish to do either of these things, you should complete paragraphs 7 and 8 above accordingly or otherwise notify the Registrar in writing of your wish.

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2. Any extension of time (if needed) should be sought from the Registrar or the Court of Appeal under section 313 of the Criminal Procedure Act 2009. 3. If you wish the Court, on the hearing of your appeal, to consider your case in writing without the presentation of oral argument, you should inform the Registrar accordingly. 4. An interlocutory appeal may be abandoned at any time before the hearing of the appeal by filing with the Registrar a notice of abandonment in the appropriate form. * Delete if not applicable

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[5.510]

[5.510]

Notice of application for review of refusal to certify: Form 6-3B.

Rule 3.04

FORM 6-3B

IN THE SUPREME COURT OF VICTORIA 20 No AT The Queen v AB NOTICE OF APPLICATION FOR REVIEW OF REFUSAL OF JUDGE TO CERTIFY UNDER SECTION 295(3) OF CRIMINAL PROCEDURE ACT 2009 To the Registrar of Criminal Appeals: I, [full name], am a party to a proceeding in the *County Court/*Trial Division of the Supreme Court for the prosecution of an indictable offence. *Judge/*Justice [name of Judge] in that proceeding has refused to certify under section 295(3) of the Criminal Procedure Act 2009 so that an appeal against and interlocutory decision of that Judge may be made. I APPLY to the Court of Appeal under section 296 of that Act for a review of the decision of the Judge to refuse to certify. The ground(s) of my application for review are: [state precisely the grounds of the application for review] Date: [Signed by Appellant or legal practitioner on behalf of Appellant] * Delete if not applicable

[5.520]

[5.520]

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Court of Appeal: Practice Statement No 1 of 2016

SUPREME COURT OF VICTORIA Court of Appeal – Practice Statement No 1 of 2016 Interlocutory appeals and reserved questions of law in criminal proceedings With the concurrence of the Chief Justice, the President has authorised the issue of the following Practice Statement, which repeals and replaces Practice Statement No 1 of 2010. 1. PURPOSE 1.1 This Practice Statement outlines the procedures to be followed in relation to interlocutory appeals and the reservation of questions of law pursuant to Divisions 4 and 5 of Part 6.3 of the Criminal Procedure Act 2009 (“the Act”). 1.2 This Practice Statement is to be read in conjunction with Order 3 of the Supreme Court (Criminal Procedure) Rules 2008 (“the Rules”). As appears below at 8.1 the usual practice will be not to require the filing of an affidavit pursuant to Rule 3.05. 2. APPLICATION 2.1 An interlocutory appeal may be commenced in relation to an interlocutory decision. An interlocutory decision is defined at section 3 of the Act as: “a decision made by a judge in a proceeding referred to in section 295(1) [of the Act], whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding.”

2.2 An interlocutory appeal is confined to an interlocutory decision or decisions made in the County Court of Victoria or the Trial Division of the Supreme Court of Victoria in a proceeding for the prosecution of an indictable offence (section 295 of the Act). Consequently, this Practice Statement does not apply to appeals against any decision made by a Magistrate in the course of proceedings before the Magistrates’ Court of Victoria. 2.3 This Practice Statement does not apply to interlocutory appeals commenced in relation to civil proceedings.

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3. FLOWCHART SETTING OUT ENTIRE PROCEDURE INTERLOCUTORY APPEALS (see [5.290] in this chapter)

[5.520]

FOR

4. CONTACTING THE COURT OF APPEAL REGISTRY 4.1 The intending applicant in an interlocutory appeal should contact the Registry as soon as is reasonably practicable following the judge’s decision in relation to certification. This contact may be made, either by telephone or by email to [email protected], prior to the formal commencement of the interlocutory appeal (referred to at Parts 5 and 6), and will enable the Registry to initiate preparations for the interlocutory appeal by taking actions such as requesting the relevant transcript from VGRS (referred to at Part 10). 4.2 At the time of contacting the Registry pursuant to paragraph 4.1 above, the intending applicant should notify the Registry of the following particulars: a. the name of the judge who made the interlocutory decision; b. the name, contact details and availability of trial counsel for the applicant and respondent; c. the date on which the judge ruled on the application for certification; d. the status of the trial proceedings; e. whether the applicant is in custody and, if so, whether the applicant wishes to attend the interlocutory appeal hearing; f. a realistic estimate of the time required for oral submissions in regard to the interlocutory appeal (bearing in mind that the application for leave to appeal or review may be treated as the hearing of the appeal); h. the nature of any material or documentation tendered or referred to in submissions before the judge regarding the interlocutory decision. 5. COMMENCEMENT OF AN INTERLOCUTORY APPEAL WHERE THE INTERLOCUTORY DECISION HAS BEEN CERTIFIED BY THE JUDGE 5.1 If the judge certifies an interlocutory decision in accordance with section 295(3) of the Act, an interlocutory appeal may be commenced by filing a notice of application for leave to appeal (Form 6-3A as prescribed in the Rules). 5.2 The Form 6-3A shall be signed by the applicant or the applicant’s legal practitioner and be filed electronically if practicable. All electronic filing is to be to the email address [email protected] 5.3 The Form 6-3A must be filed in accordance with the timeframe prescribed by section 298(1) of the Act, being: a. subject to paragraph (b), if the trial has not commenced when the interlocutory decision is made, within 10 days after the day on which the interlocutory decision is made or any extension of that period granted under section 313; or

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b. if the trial commences within 10 days after the day on which the interlocutory decision is made, within 2 days after the day on which the trial commences or any extension of that period granted under section 313; or c. if the trial has commenced when the interlocutory decision is made, within 2 days after the day on which the interlocutory decision is made or any extension of that period granted under section 313. 5.4 The applicant must serve a copy of the Form 6-3A on the respondent in accordance with section 298(2) of the Act. The Court of Appeal Registry will not serve the notice on the respondent. 6. COMMENCEMENT OF AN INTERLOCUTORY APPEAL WHERE THE JUDGE HAS REFUSED TO CERTIFY AN INTERLOCUTORY DECISION 6.1 If the trial judge refuses to certify an interlocutory decision in accordance with section 295(3) of the Act, an interlocutory appeal may be commenced by filing a notice of application for review of the refusal to certify (Form 6-3B as prescribed in the Rules). 6.2 The Form 6-3B shall be signed by the applicant or the applicant’s legal practitioner and be filed electronically if practicable. 6.3 Pursuant to section 296(4) of the Act, on a review, the Court of Appeal — a. must consider the matters referred to in section 295(3); and b. if satisfied as required by section 297, may give the applicant leave to appeal against the interlocutory decision. Accordingly, in addition to filing a Form 6-3B, the applicant should also file a notice of application for leave to appeal (Form 6-3A) when commencing an application for review. 6.4 The Form 6-3B must be filed in accordance with the timeframe prescribed by section 296(2) of the Act, being: a. subject to paragraph (b), if the trial has not commenced when the judge refuses to certify, within 10 days after the day on which the judge refuses to certify or any extension of that period granted under section 313; or b. if the trial commences within 10 days after the day on which the judge refuses to certify, within 2 days after the day on which the trial commences or any extension of that period granted under section 313; or c. if the trial has commenced when the judge refuses to certify, within 2 days after the day on which the judge refuses to certify or any extension of that period granted under section 313. 6.5 The applicant must serve a copy of the Form 6-3B and a copy of the Form 6-3A on the respondent in accordance with section 296(3) of the Act. The Court of Appeal Registry will not serve either notice on the respondent.

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[5.520]

7. LISTING 7.1 The Registrar will determine the urgency of an interlocutory appeal and make suitable arrangements to list the matter for hearing. 7.2 The Registrar will not delay listing an interlocutory appeal on the basis of the applicant obtaining advice as to the merits of the interlocutory appeal. 7.3 It is expected that trial counsel, wherever practicable, will appear at the hearing of an application for leave or review. 7.4 Upon listing an interlocutory appeal, the Registrar will notify the trial judge as to the listing date. 8. SUMMARY OF CONTENTIONS 8.1 In each interlocutory appeal the Registrar will give directions for the filing of documents and fix dates by which such documents are required to be filed and served. 8.2 Unless actually directed to do so no affidavit in the form specified in Rule 3.05 will be required to be filed and served. Instead of requiring such an affidavit the Registrar will usually direct that the parties file an agreed document setting out a succinct narrative history of the conduct of the matter to date. 8.3 The Registrar will ordinarily direct each party to file and serve a Summary of Contentions and will specify dates by which the respective Summaries of Contentions are to be filed and served. Ordinarily the applicant will be directed to file and serve first. 8.4 A Summary of Contentions should: a. outline the contentions relied upon in argument before the judge prior to the making of the interlocutory decision; b. separately outline any additional contentions sought to be relied upon; and c. refer to relevant authorities. 8.5 A Summary of Contentions is not required to include a summary of facts. 8.6 Unless otherwise directed by the Registrar, a Summary of Contentions should not exceed five pages in length. 9. TRANSCRIPT 9.1 The Registry will obtain the transcript of the submissions before the judge in relation to the interlocutory decision and the trial judge’s decision and, where required, the transcript in relation to certification. Copies of the transcript will be provided by the registry to the parties. 10. FILING OF DOCUMENTATION OR MATERIAL TENDERED OR REFERRED TO IN SUBMISSIONS BEFORE THE TRIAL COURT IN REGARD TO THE INTERLOCUTORY DECISION 10.1 The Registrar will obtain and provide to the parties a copy of all relevant documentation or material referred to in submissions before the trial judge relating to the interlocutory decision. Usually these

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documents will be obtained in an electronic format from the associate to the trial judge so as to expedite the process of preparing the interlocutory appeal for hearing. 11. AUTHORITIES 11.1 A party should file and serve a List of Authorities, which are expected to be referred to during the hearing of the interlocutory appeal, as soon as practicable. 11.2 Authorities referred to in a List of Authorities, if reported in an authorised series of law reports, are to be cited by that citation. 11.3 The party concerned is not required to file copies of the authorities, whether reported or unreported, unless directed to do so. 12. ELECTRONIC FILING 12.1 Electronic filing is the Registry’s preferred method of filing. Documents to be filed electronically should be emailed to: [email protected].

12.2 Where documents are filed electronically, it is not necessary to file a hard copy. 12.3 Documents filed in electronic form are required to be filed in Word, PDF or TIFF format. Statements of Contention must be filed in an editable format which allows for copying of parts of any such document. 13. ABANDONMENT 13.1 An interlocutory appeal may be abandoned at any time before the hearing of the appeal by filing with the Registrar a notice of abandonment (Form 6-2N as prescribed in the Rules). 13.2 To avoid wasted preparation by the Court, the parties are to advise the Registry as soon as a decision is made to abandon an interlocutory appeal or review. 14. RESERVED QUESTIONS OF LAW 14.1 In general, and making allowance for their different nature, the Registrar will manage reserved questions of law, or the refusal to certify a question of law, pursuant to sections 302 and 304 of the Act in accordance with this Practice Statement, and, in the case of a refusal to reserve a question of law, Part 4 of Order 2 of the Rules. 15. CONTACT 15.1 The contact details of the Registry are: Address:

Telephone:

Level 2 436 Lonsdale Street Melbourne VIC 3000 (03) 9603 9100

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Fax: Email: Hours:

[5.520]

(03) 9603 9111 [email protected] 9.30am – 4.00pm, excluding public holidays and the Tuesday following Easter Monday

30 November 2015

Chapter 6

Appeal and other Applications from Trials on Indictment [6.10] Introduction ......................................................................................................................... 218 [6.20] PART A: APPEALS AGAINST CONVICTION ............................................................. 218 [6.20] The right to appeal conviction ......................................................................................... 218 [6.30] Who can appeal conviction? ............................................................................................. 218 [6.40] What is a conviction? ......................................................................................................... 219 [6.50] Can an appeal be brought before a sentence is passed? ............................................. 219 [6.60] Can an appeal against conviction be brought after a plea of guilty? ....................... 220 [6.70] Grounds of appeal against conviction ............................................................................ 221 [6.80] Grounds for upholding an appeal against conviction ................................................. 222 [6.150] Fresh evidence on an appeal against conviction ........................................................ 234 [6.160] Orders available to the court on conviction appeal: CPA s 277 ............................... 236 [6.250] Appeal against finding of unfitness to stand trial ...................................................... 240 [6.290] Appeal against verdict of not guilty because of mental impairment ..................... 243 [6.320] Other appeals under the CMIUTA ................................................................................ 245 [6.350] Procedure on conviction appeals ................................................................................... 246 [6.500] The appeal hearing ........................................................................................................... 257 [6.610] PART B: SENTENCE APPEALS ..................................................................................... 267 [6.610] The right to appeal sentence .......................................................................................... 267 [6.620] Can appeal be brought if appellant consented to the sentence? ............................. 267 [6.630] Test to determine appeal against sentence ................................................................... 268 [6.640] Relevance of House v The King .................................................................................... 268 [6.650] Manifest excess as ground of appeal ............................................................................ 270 [6.760] Other issues and principles often arising on appeal against sentence ................... 284 [6.970] Procedure on sentence appeals ...................................................................................... 313 [6.1080] Hearing of appeal ........................................................................................................... 320 [6.1120] DPP appeals against sentence ....................................................................................... 323 [6.1260] Guideline judgment ........................................................................................................ 333 [6.1390] PART C: CASE STATED ................................................................................................ 341 [6.1390] Jurisdiction ....................................................................................................................... 341 [6.1400] What is a question of law? ........................................................................................... 343 [6.1410] Procedure where trial commenced .............................................................................. 343 [6.1420] Refusal to reserve ........................................................................................................... 343 [6.1430] Trial judge states a case ................................................................................................. 344 [6.1440] Determination by Court of Appeal ............................................................................. 344

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[6.10]

[6.1450] Remittal of case stated ................................................................................................... 345 [6.1460] Costs on case stated ....................................................................................................... 345 [6.1480] Referral of question of law under Victorian Charter of Human Rights ............... 347 [6.1490] DPP reference to court of appeal ................................................................................. 348 [6.1510] Judicial Review of decisions made by County Court or Supreme Court ............ 348 [6.1520] Application by DPP for retrial of person acquitted ................................................. 349 [6.1710] Petition for mercy ........................................................................................................... 360

Introduction [6.10] This chapter sets out the statutory rights to appeal against a conviction and a sentence following a trial on indictment. This includes the right of the Director of Public Prosecutions (DPP) to appeal a sentence. The right to appeal decisions regarding fitness to stand trial and mental impairment is also examined. In addition to setting out the substantive appeal rights, the procedure for appealing is also covered along with issues that commonly arise on such appeals. Other forms of referral such as the case stated procedure, referral of questions of law, and the petition of mercy are included. The power of the Court of Appeal to deliver a guideline judgment is explained and the right of the DPP to apply to the Court of Appeal for the retrial of a person acquitted is described. The chapter consists of three parts: Part A covers appeals against conviction; Part B appeals against sentence; and Part C applications and other types of referral to the Court of Appeal.

PART A: APPEALS AGAINST CONVICTION The right to appeal conviction [6.20] The right to appeal conviction is contained in Ch 6 Pt 6.3 of the Criminal Procedure Act 2009 (Vic) (hereafter “CPA”).1 Section 274 of the CPA states: “A person convicted of an offence by an originating court may appeal to the Court of Appeal against the conviction on any ground of appeal if the Court of Appeal gives leave to appeal.”2

Who can appeal conviction? [6.30] Only a person convicted by an “originating court” can appeal conviction under the CPA s 274. “Originating court” is defined in CPA s 3 to mean the County Court in its original jurisdiction or in the Trial Division of the Supreme Court in its original jurisdiction. 1 This section of the chapter draws upon Justice Phillip Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016. 2 In NH v Director of Public Prosecutions [2016] HCA 33 at [76] the High Court stated “When the Full Court hears an appeal against conviction it is hearing an appeal against a judgment of the court at first instance.” The verdict of the jury in a criminal trial is not the judgment of the court.

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The DPP is not permitted to appeal an acquittal because of the common law principle of double jeopardy.3 The DPP can, however, apply to the Court of Appeal for the retrial of a person acquitted in the County Court or the Supreme Court: see [6.1520]–[6.1700].4 Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1.

What is a conviction? [6.40] Section 3 of the CPA defines a “conviction” as including “a finding of guilt by a court, whether or not a conviction is recorded”.5 Therefore, a person could appeal a finding of guilt even if a conviction has not been recorded by the court. In R v Celep6 no formal judgment of conviction was recorded on the record of the court. Winneke P stated: However, the jury’s verdict of “guilty” on count 3 was accepted by the court before the jury was finally discharged and has been noted on the back of the presentment. That, in my view, is a sufficient “conviction” to support an appeal under s 567 notwithstanding that the conviction might never be formally recorded.7

Can an appeal be brought before a sentence is passed? [6.50] Ordinarily, an appellant will have been sentenced before appealing the conviction. However, there are circumstances where the Court of Appeal would permit a person to appeal conviction notwithstanding the fact that the person has not been sentenced. One of the early cases is R v De Marchi,8 where the court stated: But there may be exceptional cases where an applicant who challenges the sufficiency of the evidence to warrant a conviction is held in custody pending sentence for a substantial time and entertains a feeling of injustice at being so 3 Davern v Messell (1984) 155 CLR 1; DPP v Singh (2012) 34 VR 364; [2012] VSCA 167. In NH v Director of Public Prosecutions [2016] HCA 33 the High Court held that where the judgments of the trial court were perfected, recording the jury’s verdict of acquittal (of murder) and conviction (of manslaughter), then the DPP was not permitted to challenge the jury verdict of acquittal, despite an apparent procedural error by the jury foreperson. The High Court held that in South Australia the DPP had no right to appeal an acquittal in those circumstances: at [29]. The High Court held that the Full Court of the Supreme Court of South Australia was not permitted to “look behind” the verdicts as communicated by the foreperson in open court: at [49]. 4 CPA s 327O. 5 For specified sentences, under the Sentencing Act 1991 (Vic) s 8 the court has a discretion whether to record a conviction or not: see A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [1.250]–[1.270]. 6 R v Celep [1998] 4 VR 811. 7 R v Celep [1998] 4 VR 811 at 813. 8 R v De Marchi [1983] 1 VR 619.

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held when he contends and desires to contend to this court that the conviction was wrong in law and that there was no case to go to the jury or that the case should have been withdrawn from the jury.9

In Costa v The Queen10 the appellant was convicted of several offences. He had not, however, been sentenced when he appealed the convictions. The appeal was on the ground that there had been improper communications with the jury, which rendered the convictions unsafe. The Crown conceded there had been a substantial miscarriage of justice. The court held that the fact the appellant had not been sentenced “is no obstacle to success on an appeal against conviction”.11 Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.140].

Can an appeal against conviction be brought after a plea of guilty? [6.60] In limited circumstances, a person who has pleaded guilty to an offence can nevertheless appeal the conviction for that offence.12 The central issue for the Court of Appeal in such a case is whether there has been a miscarriage of justice. If there has been a miscarriage of justice, the conviction must be quashed. In R v Forde,13 Avory J stated that where the appellant had pleaded guilty, an appeal was open only if it appeared: (i) that the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it; or (ii) that upon the admitted facts he could not in law have been convicted of the offence charged.14

It appears, however, that the two conditions set out in Forde are not exhaustive.15 In Riley v The Queen16 the appellant pleaded guilty to being a prohibited person in charge of a firearm under s 5(1) of the Firearms Act 1996 (Vic).17 However, the weapon was an imitation firearm, which is 9 R v De Marchi [1983] 1 VR 619 at 632. 10 Costa v The Queen [2013] VSCA 5. 11 Costa v The Queen [2013] VSCA 5 at [1]. 12 R v Forde [1923] 2 KB 400; Beqiri v The Queen (2013) 37 VR 219; [2013] VSCA 39 at [38]. 13 R v Forde [1923] 2 KB 400. 14 R v Forde [1923] 2 KB 400 at 403. 15 R v Murphy [1965] VR 187 at 190; Meissner v The Queen (1995) 184 CLR 132 at 157 (intimidation or fraud). 16 Riley v The Queen [2015] VSCA 259. 17 Riley v The Queen [2015] VSCA 259. However, the court held that it was not empowered to substitute a verdict of guilty of an offence under s 5AB(2) of the Control of Weapons Act 1990 (Vic) because s 277(1)(c) of the CPA only applies following a verdict by a jury: “The

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excluded by s 5(1). The correct charge should have been under s 5AB(2) of the Control of Weapons Act 1990 (Vic), that is, being a prohibited person in possession of a an imitation firearm. On an appeal against conviction, the Court of Appeal quashed the conviction. Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.160]. Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1.7.

Grounds of appeal against conviction [6.70] Section 274 of the CPA states that an appeal against conviction can be brought “on any ground” if the court gives leave. This provides an extremely wide scope to bring an appeal. Priest JA provides a useful overview of the various grounds: It is impossible to give an exhaustive list of the grounds upon which an appeal against conviction might be brought. Most will involve mixed errors of fact and law, although in some cases (for example, in cases of want of jurisdiction) the grounds involve questions of pure law. Because criminal trials in the County Court and Supreme Court in this State are conducted by a judge sitting with a jury, very often the grounds will involve some complaint of misdirection or material non-direction to the jury, or of wrongful admission of, or failure to admit, evidence. Some of the more commonly occurring grounds will involve the following: • Lack of jurisdiction; • Misdirection or non-direction on the burden or standard of proof; • Misdirection or non-direction on evidence; • Misdirection or non-direction on a defence, or failing to leave a defence to the jury which is open on the evidence; • Misdirection or non-direction on the elements of the offence; • Wrongful admission of evidence; • Failure to admit relevant evidence; • Procedural errors; • Improper conduct on the part of the prosecution; • Inconsistent verdicts; • Unsafe or unsatisfactory verdict.18 subsection simply does not permit the Court to substitute a verdict for another offence where an appeal against conviction is allowed under s 274 following a plea of guilty”: at [19]. (Cf Crimes Legislation Further Amendment Bill 2016 cl 8.) 18 P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.170]; for cases dealing with each of these grounds, see fns to [3.3.170].

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Whilst there is an unlimited number of possible grounds of appeal, in formulating a ground or grounds of appeal it is critical to note the grounds upon which the Court of Appeal can uphold an appeal against conviction under CPA s 276(1).

Grounds for upholding an appeal against conviction [6.80]

Section 276 of the CPA states:

(1) On an appeal under section 274, the Court of Appeal must uphold an 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 a result of an error or 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. (2) In any other case the Court of Appeal must dismiss the appeal under section 274.

Section 276(1)(a) of the CPA does not state that a substantial miscarriage of justice must have occurred, but it is accepted that if the verdict of the jury is “unreasonable or cannot be supported”, then a substantial miscarriage of justice has occurred.19 Unsafe and unsatisfactory verdict: CPA s 276(1)(a) [6.90] The term “unsafe or unsatisfactory” jury verdict is often used instead of describing the jury verdict as being “unreasonable or cannot be supported having regard to the evidence”.20 In M v The Queen21 the High Court stated: Where a court of criminal appeal sets aside a verdict on the ground that is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory.22

In M v The Queen the majority judgment set out the test to be applied to determine if the verdict of the jury is unsafe or unsatisfactory: Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. … But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations. 19 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [19]. 20 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492 (CLR) [6]; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58]. 21 M v The Queen (1994) 181 CLR 487; [1994] HCA 63. 22 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492 (CLR) [6].

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… In most cases a doubt experienced by an appellate court will be a doubt which the jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence.23

The crucial point to note about this test is that the Court of Appeal itself decides whether, upon the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. In deciding this question, the Court of Appeal does not ignore the role of the jury or the advantages enjoyed by the jury in seeing and hearing the witnesses. However, the Court of Appeal makes its own independent assessment of the evidence.24 In R v Klamo,25 the Victorian Court of Appeal stated: The approach required of appellate courts in considering the “unsafe and unsatisfactory” ground involves the following steps: 1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses. 3. In most cases a doubt experienced by the appeal court is a doubt which the jury ought also to have experienced. 4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.26

In Klamo the Court of Appeal stated that a guilty verdict was “reasonably open” to the jury if there was no aspect of the evidence which obliged the jury to come to a different conclusion.27 The court also referred to Libke v The Queen,28 where the High Court stated that in determining if the 23 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494 (CLR) [7] and [9]. 24 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 49 (CLR) [6]: “The question is one of fact which the court must decide by making its own independent assessment of the evidence”. 25 R v Klamo (2008) 18 VR 644; [2008] VSCA 75. 26 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at 653 (VR) [38]. 27 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at 654 (VR) [39]. 28 Libke v The Queen (2007) 230 CLR 559 at 596–597.

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verdict of guilty was open to the jury was to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.29 In Klamo the Court of Appeal rephrased the test in M v The Queen by saying the test requires the court of 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”.30 The Court of Appeal in Klamo adopted the metaphor of whether there was a “solid obstacle to reaching a conclusion beyond reasonable doubt”31 or whether, instead, “the path to a conviction was open”.32 Klamo is an example of a case where the Court of Appeal determined for itself that a verdict of guilty was not open on the evidence presented, and an acquittal was entered. The court regarded the jury verdict as unsafe and unsatisfactory. In R v Baden Clay33 the High Court explained how an appeal court should approach the “unsafe and unsatisfactory” ground of appeal in a case based wholly on circumstantial evidence. The Court referred34 to the following dicta from Barca v The Queen:35 When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused” [referring to Peacock v The Queen36]. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw” [referring to Plomp v The Queen37 and Thomas v The Queen38].

In R v Baden-Clay the High Court continued: For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.” [referring to Peacock v The King39]. Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in 29 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at 654 (VR) [39]. 30 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at 654 (VR) [40]. 31 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at 654 (VR) [40], referring to R v Shah [2007] SASC 68 at [4]. 32 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at 654 (VR) [40], referring to Morabito v The Queen [2007] NSWCCA 126 at [34]. 33 R v Baden-Clay [2016] HCA 35. 34 R v Baden-Clay [2016] HCA 35 [46]. 35 Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104. 36 Peacock v The King (1911) 13 CLR 619; [1911] HCA 66 at 634 (CLR). 37 Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44 at 252 (CLR). 38 Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2 at 605-606 (CLR). 39 Peacock v The King (1911) 13 CLR 619; [1911] HCA 66 at 661 (CLR).

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deciding whether there is an inference consistent with innocence reasonably open on the evidence” [referring to R v Hillier40]. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.41

In Baden-Clay the High Court held that the Queensland Court of Appeal was wrong to uphold a submission from the convicted person (BadenClay] that an alternative hypothesis consistent with innocence was open on the evidence: The evidence given in the present case by the respondent narrowed the range of hypotheses reasonably available upon the evidence as to the circumstances of the death of the respondent’s wife. Not only did the respondent not give evidence which might have raised the hypothesis on which the Court of Appeal acted, the evidence he gave was capable of excluding that hypothesis. The Court of Appeal’s conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence.42

The High Court also stated more generally that: the setting aside of a jury’s verdict on the ground that it was “unreasonable” within the meaning of s 668E(1) of the Criminal Code (Qld) is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial [referring to M v The Queen43]. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”. [referring to M v The Queen].44

The High Court held that upon the whole of the evidence at trial, it was reasonable for the jury to conclude that the respondent was guilty of murder, quashed the orders of the Queensland Court of Appeal, and restored the conviction of murder.45 It can be seen that, based on the High Court judgment in Baden-Clay, in a circumstantial case, a court of appeal should be cautious before allowing an appeal against conviction based on the unsafe and unsatisfactory ground. Any alternative hypothesis consistent with the innocence of the 40 R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at 637 (CLR). 41 R v Baden-Clay [2016] HCA 35 at [47]. 42 R v Baden-Clay [2016] HCA 35 at [54]-[55]. 43 M v The Queen (1994) 181 CLR 487 at 494; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at 621-623 (CLR) [49]-[51], [56]. 44 R v Baden-Clay [2016] HCA 35 at [65]-[66]. 45 R v Baden-Clay [2016] HCA 35 at [80].

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convicted person must be based on evidence adduced at the trial, and must not be a matter of pure conjecture or speculation (at trial and on appeal). Recent examples of cases where the Court of Appeal has held that the verdict of the jury is unreasonable or cannot be supported include: Cook v The Queen;46 King v The Queen;47 Velkoski v The Queen;48 Pillay v The Queen;49 and Davies v The Queen.50 Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.190]. Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1.1. Inconsistent verdicts [6.100] Although jury verdicts which are inconsistent may or may not render a verdict unsafe and unsatisfactory, the topic of inconsistent verdicts is dealt with here as a distinct ground of appeal from the ground of “unsafe and unsatisfactory” because the two grounds involve different legal principles and will usually lead to different orders by the appellate court (if the appeal succeeds). In Mackenzie v The Queen,51 Gaudron, Gummow, and Kirby JJ set out the following propositions to guide courts of appeal (footnotes omitted): 1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court’s record there will be two verdicts which, in law, cannot stand together. Examples include the case where an accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge’s directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made. 2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting coaccused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately …. 46 Cook v The Queen [2014] VSCA 220. 47 King v The Queen [2014] VSCA 107. 48 Velkoski v The Queen [2014] VSCA 121. 49 Pillay v The Queen [2014] VSCA 249. 50 Davies v The Queen [2014] VSCA 284. 51 MacKenzie v The Queen (1996) 190 CLR 348.

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3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test: “He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.” 4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have lead courts to express repeatedly, in the context of both criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries … 5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends upon the facts of the case”. 6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.52

52 MacKenzie v The Queen (1996) 190 CLR 348 at 366–368. Also see Carrott v The Queen [2013] VSCA 90; R v JGVR [2001] VSCA 8; BWA v The Queen [2012] VSCA 218; Amato v The Queen [2013] VSCA 346; Lydgate (a pseudonym) v The Queen (No 2) [2016] VSCA 33 and MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34]-[36].

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Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.300]. Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1.2. “Error or irregularity”: CPA s 276(1)(b) [6.110] Section 276(1)(b) of the CPA provides that a ground of appeal is that as a result of an error or irregularity, there has been a substantial miscarriage of justice. The relevant issues are: what does “error or irregularity” mean; and what does “substantial miscarriage of justice” mean? The key case here is Baini v The Queen.53 In Baini the accused had been charged with multiple counts of blackmail against two complainants, R and S. All but one count concerned R and only one count concerned S.54 The trial judge refused an application to sever the presentment and all the counts were tried together. The accused was convicted of many counts against R and the single count against S. On appeal against conviction, the Victorian Court of Appeal held that the judge had erred in not severing the presentment because evidence was allowed in which was otherwise inadmissible in the case against the accused regarding R and S separately.55 In other words, the testimony of S was allowed in as part of the case against R and vice versa. This evidence was highly prejudicial and not cross-admissible and should have been excluded. The Court of Appeal held that a substantial miscarriage of justice had occurred in relation to the case involving S and ordered a retrial. However, in the case involving the complainant R, the Court of Appeal held there had not been a substantial miscarriage of justice because the judge had given a strong direction to the jury about the need to only consider the evidence relevant to each count. Further, this was not a case where the jury should have entertained a doubt about the guilt of the accused (in respect to R) because the Court of Appeal had no such doubt. The Victorian Court of Appeal had applied the test in Weiss v The Queen56 to determine if there had been a substantial miscarriage of justice.57 Baini then appealed to the High Court on the basis that the Court of Appeal 53 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59. 54 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59. 55 Baini v The Queen (2011) 33 VR 252; (2011) 213 A Crim R 382. 56 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81. 57 Baini v The Queen (2013) 42 VR 608; [2013] VSCA 157 at [5]. In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, s 568(1)(b) of the Crimes Act 1958 (Vic) had been made out and the question was whether the error had resulted in a substantial miscarriage of justice. The High Court held that the Court of Appeal itself had to be persuaded “that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s

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should have held that there had been a substantial miscarriage of justice in relation to the complainant R.58 The issue was thus whether the Court of Appeal had applied the correct test. In a majority judgment (Gageler J dissenting), the High Court confirmed that there was no doubt the error made by the judge came within CPA s 276(1)(b).59 That was not the issue. The issue was whether the error or irregularity had resulted in a “substantial miscarriage of justice”. The court stated that in determining if a substantial miscarriage of justice had occurred, the text of the statute must be closely examined, and for this reason the starting point is not the case of Weiss but the words in CPA s 276(1). The court then made three preliminary observations about CPA s 276. These observations were (in summary): (a) s 276 deals exhaustively with an appeal commenced under s 274; (b) the appellant bears the ultimate burden of persuasion; and (c) although s 276(1)(b) and (c) include the words “substantial miscarriage of justice”, there must be a substantial miscarriage of justice if the verdict of the jury is to be regarded as unreasonable or cannot be supported by the evidence (under CPA s 276(1)(a)).60 The court did not think there was much utility in comparing CPA s 276 with the common form appeal provisions but noted the difference in respect to which party has the burden of proof.61 It noted that a miscarriage of justice can take many forms and that s 276(1)(b) provides just one category of “errors and irregularities” in the trial. This encapsulates “any departure from trial according to law”.62 While s 276(1)(c) shows there can be other types of miscarriages, when s 276(1)(b) and (c) are read together “any and every form of substantial miscarriage of justice” is encompassed.63 It is not possible to provide a single universal definition of a substantial miscarriage of justice because there are so many possible types and circumstances.64 The court gave three examples: the “unreasonable jury verdict”; the “error or irregularity in the trial (and the Court of Appeal cannot be satisfied that the error or guilt of the offence on which the jury returned its verdict of guilty”: at [44]. This was the same approach to be taken by an appellate court to the question of whether the verdict of the jury is unreasonable or cannot be supported having regard to the evidence: at [41]. 58 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59. 59 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [13]. 60 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [19]. 61 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [20]–[24]. Under the common form provisions the prosecution has the burden of satisfying the court that there was no substantial miscarriage of justice. 62 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [25]. 63 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [25]. 64 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [26].

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irregularity did not make a difference to the outcome of the trial)”; and a “serious departure from the prescribed processes for trial”.65 The court then distinguished between a substantial miscarriage of justice by reference to “inaccuracy of result” (that is, the jury verdict) and by reference to “departure from process even if it can be shown the verdict was open or it is not possible to conclude whether the verdict was open”.66 This implies that there can be a substantial miscarriage of justice even if the verdict of guilty was open. The court stated that whether the appellant can demonstrate a substantial miscarriage of justice can be affected by the strength of the prosecution case. In some cases it may be possible to conclude there was no substantial miscarriage of justice because the prosecution evidence was simply overwhelming, despite the error or irregularity.67 But the court emphasised that this general approach must take into account the following three points (in summary): 1. In many cases the appellate court will not be able to say whether the appellant would have been convicted if the error had not been made.68 2. This general approach does not introduce the common form proviso, nor does it require the appellant to prove their innocence. If it is submitted (by the prosecution) that a guilty verdict was inevitable, an appellant can meet the point by showing “no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt”.69 3. The inquiry to be made is whether a guilty verdict was inevitable, not whether the guilty verdict was open.70 The High Court then stated the following test: But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied there has been a 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.71

The key question thus becomes whether it was not open to the jury to entertain a doubt as to the guilt of the appellant. An appellate court can only be satisfied there was no substantial miscarriage of justice if it concludes from its review of the record that conviction was inevitable: 65 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [26]. 66 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [27]. 67 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [28]. 68 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [29]. 69 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [30]. 70 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [32]. 71 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [32].

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It is the inevitability of the conviction which will sometimes warrant the conclusion that there has not been a substantial miscarriage of justice with the consequential obligation to allow the appeal and either order a new trial or enter a verdict of acquittal.72

Another way to put this is to say that there has been no substantial miscarriage of justice if the error or irregularity had no bearing on the outcome of the trial.73 Could the jury have reached a different conclusion if the error had not been made? The High Court noted that although the Victorian Court of Appeal did consider whether the jury should have had a doubt about the appellant’s guilt, that issue only arose in relation to CPA s 276(1)(a) and was not considered in relation to s 276(1)(b) or (c). This was the error the Victorian Court of Appeal made. The Court of Appeal did not consider whether the jury verdict was not only “open”, but whether the verdict was “inevitable”. Accordingly, the High Court remitted this case back to the Court of Appeal to determine whether the verdict of the jury in relation to complainant R was inevitable. As a result of Baini, it appears that for the purposes of CPA s 276(1)(b) or (c) a substantial miscarriage of justice occurs if there is an error or irregularity, and if that error or irregularity had not occurred, the verdict of guilty was not inevitable. If the Court of Appeal is satisfied the jury may well have returned a different verdict, then a substantial miscarriage of justice has occurred and the conviction must be set aside. Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1.3. Reconsideration of Baini by Victorian Court of Appeal [6.120] When the case of Baini was remitted to the Victorian Court of Appeal to again consider the matter,74 the Court began by setting out the court’s understanding of the majority decision of the High Court (footnotes omitted): As we respectfully apprehend their Honours’ path of reasoning, it proceeds by the following steps: 1) Ultimately, the question of what constitutes a miscarriage of justice for the purposes of s 276 of the Criminal Procedure Act is a question of statutory construction. Paraphrases of the statutory language are apt to mislead. They cannot and do not stand in the place of the words used in the statute. 2) The possible kinds of miscarriage of justice with which s 276(1) deals include, although they are not limited to, cases like the present where there has been an error or irregularity in or in relation to a trial [but] the Court of Appeal [can] be satisfied that the error or irregularity did not make a difference to the outcome of the trial. 72 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [33]. 73 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [36]. 74 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59.

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3) In determining if there has been a substantial miscarriage of justice in such a case, the Court of Appeal must consider whether the verdict was inevitable, although an affirmative answer to that question will not always conclude the issue. 4) So to say is not to reintroduce the proviso to the common form criminal appeal provision or impose on an appellant an onus of proving his or her innocence. Nor is it to say that “observations made in Weiss about the application of the common form criminal appeal provision cannot apply to s 276 …, but only if the statutory text so permits”. 5) The inquiry which must be made, however, is whether a guilty verdict was inevitable, not whether the verdict was open. 6) If the Crown contends that a guilty verdict was inevitable, an appellant may meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt. 7) If the Crown contends that a guilty verdict was inevitable (which is to say a verdict of acquittal was not open), the Court of Appeal must decide that question on the written record of the trial recognising “the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record”. 8) The fact that the jury has returned a verdict of guilty may assist in answering the question but, in cases like the present, where evidence has wrongly been admitted, and in cases where evidence has wrongly been excluded, the Court of Appeal cannot fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt. 9) In deciding whether it was not open to the jury to entertain a doubt as to guilt, the Court of Appeal must determine whether “the result at trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made”. 10) That determination is not to be made by “speculating what a jury, this jury, or a reasonable jury might have done but for the error”. 11) “Nothing short of satisfaction beyond reasonable doubt will do”. The Court of Appeal “can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a ‘substantial miscarriage of justice’ if the … court concludes from its review of the record that conviction was inevitable”.75

The Court of Appeal then set out its understanding of the test to be applied in the instant case: We proceed, therefore, on the basis that it is not open to be satisfied on the record of the trial that the admission of the inadmissible Srour evidence did not amount to a “substantial miscarriage of justice” unless we are able to conclude from our review of the record that, if the inadmissible Srour evidence were excluded, the jury acting reasonably and applying the correct onus and standard of proof could not properly have been left with a reasonable doubt as to the applicant’s guilt on those of the Rifat counts on which the jury returned a verdict of guilty.76 75 Baini v The Queen (2013) 42 VR 608; [2013] VSCA 157 at [8]. 76 Baini v The Queen (2013) 42 VR 608; [2013] VSCA 157 at [10].

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The court explained the error it had made when it first considered the matter: It was not enough that, based upon our own independent assessment of the evidence, we considered the Crown case (excluding the inadmissible Srour evidence) to be overwhelming and therefore to establish guilt beyond reasonable doubt. What was required was to ask whether, based upon our own independent assessment of the evidence, a verdict of guilty was inevitable in the sense that the jury acting reasonably on the evidence properly before them (excluding the inadmissible Srour evidence) and applying the correct onus and standard of proof, would have been bound to convict.77

Examples of cases where the Court of Appeal has upheld an appeal against conviction on the ground in CPA s 276(1)(b) include: Walker v The Queen;78 Rapson v The Queen;79 Velkoski v The Queen;80 Clay v The Queen;81 and Benson v The Queen.82 Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.355]. “Substantial miscarriage of justice” under the common form provisions [6.130] Prior to the enactment of the CPA a number of cases explained the meaning of “substantial miscarriage of justice” in the context of the common form appeal provisions and the operation of the proviso. These cases provide useful background to understanding the meaning of “substantial miscarriage of justice” in s 276(1)(b) and (c) of the CPA.83 It was clear from these cases that being able to establish any type of error during the trial is insufficient for an appeal against conviction to succeed. The court needs to be satisfied that because of the error or irregularity, the appellant lost a chance of acquittal which was fairly or reasonably open on the evidence. 77 Baini v The Queen (2013) 43 VR 608; [2013] VSCA 157 at [18]. The Victorian Court of Appeal held that it was not satisfied that if the error had not been made, the verdict of the jury could have been different. In other words, the court held that the verdict of guilty was inevitable: at [19] and [24]. In Andelman v The Queen (2013) 38 VR 659 the court also explained the effect of the High Court decision in Baini. 78 Walker v The Queen [2014] VSCA 177. 79 Rapson v The Queen [2014] VSCA 216. 80 Velkoski v The Queen [2014] VSCA 121. 81 Clay v The Queen (2014) 43 VR 405; [2014] VSCA 269. 82 Benson v The Queen [2014] VSCA 51. 83 See for example Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59; R v Storey (1978) 140 CLR 364; [1978] HCA 39; Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43 at 524–525 (CLR); and Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72.

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Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.350]. Conviction appeals under CPA s 276(1)(c) [6.140] A further ground of appeal is set out in s 276(1)(c) of the CPA which states “for any other reason there has been a substantial miscarriage of justice”. Section 276(1)(c) involves cases which are not covered by CPA s 276(1)(a) or (b). They generally involve serious breaches of trial procedure. Examples include mistakes in the empanelling of the jury, failure to give the jury a “separation oath”, and misconduct of tipstaff. These are not usually cases where an analysis of the evidence occurs but are cases where significant procedural or other legal protections for the accused are not complied with. To allow the conviction to stand would bring the law into disrepute because it is perceived (or might be perceived) that the appellant did not have a fair trial.84 Recall that in Baini v The Queen85 the High Court distinguished cases of “departure from process even if it can be shown the verdict was open” as distinct from “inaccuracy of result”.86 Process errors are errors which affect the credibility of the criminal justice system. Even if there is no specific legal error in the judicial directions, the conviction cannot be allowed to remain because the appellant did not have a trial according to law. These are the type of cases covered by CPA s 276(1)(c).87

Fresh evidence on an appeal against conviction [6.150] On an appeal against conviction, the Victorian Court of Appeal is empowered to admit evidence which was not adduced at the trial.88 The power to admit new evidence is discretionary. The general principle is: “Evidence which was not led at trial will not be regarded as a sufficient ground for appeal unless the absence of the evidence at trial resulted in a miscarriage of justice.”89 A distinction is made between “fresh evidence” and “new evidence”. Fresh evidence is evidence which was not available or could not have 84 For discussion of relevant cases regarding the right of an accused to a fair trial, see Smith v The Queen [2015] HCA 27 at [38]–[42]. 85 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59. 86 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [27]. The court referred to any “serious departure from the prescribed processes for trial”: at [26]. 87 See for example Andelman v The Queen [2013] VSCA 25 at [87] c/f Benson v The Queen [2014] VSCA 51. Chapter 10 of this book discusses Andelman in some detail: at [10.160]. 88 The power to admit new evidence is found in CPA ss 317, 318 and 319. 89 Rich v The Queen [2014] VSCA 126 at [48], referring to Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 at 395 (CLR); R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356; at 428 (A Crim R) [63]; R v AHK [2001] VSCA 220 at [8].

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been relied on at the trial by an accused acting with reasonable diligence.90 New evidence is evidence which was available at the time of the trial but was not called. If the evidence is admissible on the appeal, and that evidence persuades the court that there has been a miscarriage of justice (because the appellant is innocent or there is a reasonable doubt as to his or her guilt), the conviction will be quashed.91 If the court is not persuaded that the appellant is innocent, or that there is a reasonable doubt as to guilt, if the evidence is fresh, and “there is a significant possibility that the failure to receive it could result in the maintenance of an unfair conviction, the verdict will be set aside because there would be a miscarriage of justice if it were permitted to stand”.92 In Gallagher v The Queen,93 Gibbs CJ stated: The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not normally be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict.94

In R v Nguyen,95 the court stated that ordinarily a court would not be satisfied that a “fresh evidence” ground was satisfied unless: (b) the evidence is relevant and otherwise admissible; (c) the evidence is apparently credible (or at least capable of belief); and (d) there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the appellant if the evidence had been before the trial: see Gallagher at 399, 402, 410, 421 and Mickelberg at 273, 288, 301.96 90 R v Nguyen [1998] 4 VR 394 at 400; Mickelberg v The Queen (1989) 167 CLR 259 at 301; see also Smith v Western Australia [2014] WASCA 90 at [38]. 91 Rich v The Queen [2014] VSCA 126 at [50], referring to Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 at 518 (CLR); see also Weng v The Queen (2013) 279 FLR 119; [2013] VSCA 221. 92 Rich v The Queen [2014] VSCA 126 at [51]. 93 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 [4]. 94 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 at 395–396 (CLR). 95 R v Nguyen [1998] 4 VR 394. 96 R v Nguyen [1998] 4 VR 394 at 400–401; see also R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356; Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35; Ratten v The Queen (1974) 131 CLR 510; Re GAM (2005) 12 VR 177; [2005] VSCA 234.

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In Mickelberg v The Queen,97 the High Court stated: It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.98

Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.340]. Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) at [20.4.7].

Orders available to the court on conviction appeal: CPA s 277 [6.160]

Section 277 of the CPA states:

(1) If the Court of Appeal allows an appeal under section 274, it must set aside the conviction of the offence (“offence A”) and must – (a) order a new trial of offence A; or (b) enter a judgment of acquittal of offence A; or (c) if – (i) the appellant could have been found guilty of some other offence (offence B) instead of offence A; and (ii) the court is satisfied that the jury must have been satisfied of facts that prove the appellant was guilty99 of offence B – enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or (d) if the appellant could have been found guilty of some other offence (offence B) instead of offence A and the court is not satisfied as required by paragraph (c)(ii), order a new trial for offence B; (e) if the court is satisfied the appellant should have been found not guilty of offence A because of mental impairment, enter a finding of not guilty because of mental impairment and make an order or declaration under section 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or (f) if the appellant could have been found guilty of some other offence (offence B) instead of offence A and the court is satisfied – (i) that the jury must have been satisfied of facts that prove the appellant did the acts or made the omissions that constitute offence B; and (ii) that the appellant should have been found not guilty because of mental impairment – enter a finding of not guilty of offence B because of mental impairment and 97 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35. 98 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 at 273 (CLR); see also R v Abou-Chabake [2004] 149 A Crim R 417; [2004] NSWCCA 356 at 427 (A Crim R). 99 See Crimes Legislation Further Amendment Bill 2016 cl 8.

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make an order or declaration under section 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. (2) If the Court of Appeal orders a new trial, the court must order that the appellant attend on a specified date before the court in which the new trial will be conducted. Note Section 323 enables the Court of Appeal to remand the appellant in custody or grant bail pending a new trial. (3) If the Court of Appeal sets aside the conviction for offence A, it may vary a sentence that – (a) was imposed for an offence other than offence A at or after the time when the appellant was sentenced for offence A; and (b) took into account the sentence for offence A. (4) A power of the Court of Appeal under this section to impose a sentence in substitution for the sentence imposed by the originating court may still be exercised even if the sentence imposed by the originating court is an aggregate sentence of imprisonment. (5) If at the conclusion of an appeal the appellant remains convicted of more than one offence, the Court of Appeal may either – (a) impose a separate sentence in respect of each offence; or (b) impose an aggregate sentence of imprisonment in respect of all offences or any 2 or more offences.

Note that under CPA s 277(1) the conviction is “set aside”: compare “quash” under the Crimes Act 1958 (Vic) s 567. Once the conviction is set aside, s 277 of the CPA provides for numerous options to cover the virtually unlimited range of circumstances confronting the court on appeals against conviction. These options are now briefly discussed. Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1.9. New trial or verdict of acquittal [6.170] Under CPA s 277(1)(a) and (b), where the appeal has succeeded in respect to offence A, the court can order a new trial or an acquittal in respect to offence A. The general practice is (if the evidence is sufficient) that the Court of Appeal will order a new trial rather than an acquittal.100 The Court of Appeal is reluctant to order an acquittal because the question of the appellant’s guilt or innocence is regarded as a matter for a trial judge and jury. Further, the appellate court is wary about engaging in prosecutorial decision-making. This is an aspect of the separation of 100 R v Bartlett [1996] 2 VR 687 at 698. See also C Corns, “The Discretion of a Court of Appeal to Order a New Trial or a Verdict of Acquittal” (2006) 30 Crim LJ 343; A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed Thomson Reuters, Sydney, 2014) at [17.140] n 428.

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powers doctrine and the rule of law.101 However, there are a number of situations where the Court of Appeal recognises that to place the appellant on trial again would be unjust.102 The following are examples: • If the basis of the successful appeal is that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, then an acquittal is the appropriate order because no jury (on a retrial) could convict on the evidence available to the prosecution.103 • An acquittal will also be more appropriate than a new trial where the appellant has served most of the sentence.104 • The age and ill health of the appellant, and the bulk of the sentence having being served could also militate against a new trial.105 Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.310]. Conviction of alternative offence [6.180] Under CPA s 277(1)(c) the Court of Appeal can enter a conviction for an alternative offence (offence B), but only if satisfied the appellant could (as a matter of law) have been found guilty of that alternative offence, and that the jury must have been satisfied of facts that establish the guilt of the appellant of the alternative offence.106 The court can then sentence the appellant for the alternative offence but that sentence cannot be more severe than the sentence passed for the original offence. Exercising this option obviously saves the time and expense of a new trial in respect to the alternative offence. New trial for alternative offence [6.190] Under CPA s 277(1)(d), if the Court of Appeal is of the view that the appellant could have been found guilty of an alternative offence (offence B) but is not satisfied that the jury must have been satisfied of 101 However, when the Court of Appeal thinks that a retrial would be inappropriate, even though the court orders a retrial, the court will often make this clear to the DPP, usually in the concluding comments: see, eg, Walker v The Queen [2014] VSCA 177 at [44]–[55]. 102 In Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45 at [82]–[83] Kirby J sets out a comprehensive list of factors the courts have taken into account in deciding whether or not to direct a new trial or an acquittal. 103 Parker v The Queen (1997) 186 CLR 494; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59; Cook v The Queen [2014] VSCA 220; King v The Queen [2014] VSCA 107; Velkoski v The Queen [2014] VSCA 121; Pillay v The Queen [2014] VSCA 249; Davies v The Queen [2014] VSCA 284; R v Celep [1998] 4 VR 811; Kotvas v The Queen [2010] VSCA 309; CRR v The Queen (2011) 32 VR 321. 104 Crofts v The Queen (1996) 186 CLR 427; Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43. 105 R v Bartlett [1996] 2 VR 687. 106 See, eg, Knight v The Queen (1992) 175 CLR 495; R v Withers [2009] VSCA 306.

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facts that prove the guilt of the appellant of that offence, then the court can order a new trial.107 In exercising this option the court is recognising that it is for a new jury, rather than the court, to determine the guilt of the appellant on the alternative offence. Substitute verdict of not guilty because of mental impairment [6.200] Under s 277(1)(e) of the CPA, if the Court of Appeal is of the view that the appellant “should” have been found not guilty (of offence A) because of mental impairment, the court can enter a verdict of not guilty on the basis of mental impairment and make an order or declaration under s 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“CMIUTA”).108 Substitute verdict of not guilty of alternative offence because of mental impairment [6.210] Under CPA s 277(1)(f), if the Court of Appeal is of the view that the appellant “could” have been found guilty of an alternative offence (offence B), and is satisfied that the jury must have been satisfied of facts which prove the guilt of the appellant of offence B, and that the appellant should have been found not guilty (of offence B) because of mental impairment, the court can enter a verdict of not guilty of offence B on the basis of mental impairment, and make an order or declaration under s 23 of the CMIUTA. Order attendance of appellant for new trial [6.220] If the Court of Appeal orders a new trial, it “must”, under CPA s 277(2) order that the appellant attend on a specified date in respect to the new trial. Prior to s 277(2) there was no specific statutory provision to require the attendance of the appellant. Resentence for related offence [6.230] Under CPA s 277(3), where a conviction for offence A has been set aside and a sentence had been imposed for another offence (at or after the time the appellant was sentenced for offence A) and that sentence took 107 In AJS v The Queen (2007) 81 ALJR 1208; [2007] HCA 27 the High Court held that the Victorian Court of Appeal was correct to quash the conviction for the original offence (incest), but should not have ordered a new trial in respect to that charge. Instead, the Court of Appeal should have directed a verdict of acquittal on the incest charge (at [4]) and ordered a new trial of the alternative offence (indecent act with a child). The High Court made orders to this effect. Section 277(1)(d) of the CPA was inserted in response to the decision in AJS v The Queen. 108 Under s 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“CMIUTA”), if the accused is found not guilty because of mental impairment, the judge must: “(a) declare the person is liable to supervision under Part 5; or (b) order the person to be released unconditionally”. Under CMIUTAPt 5 of the Act a supervision order can be a “custodial supervision order” (CMIUTAs 26(2)(a)) or a “non-custodial supervision order”: CMIUTAs 26(2)(b).

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into account offence A, the court can vary that sentence.109 This is to avoid the requirement for a separate appeal against sentence in these circumstances. Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.370]. Resentence for other offences [6.240] Under CPA s 277(5), where the appellant has appealed multiple convictions and some convictions remain (that is, were unsuccessfully appealed or not appealed at all), the court can either impose new sentences for each remaining offence or impose an aggregate sentence for all or any two or more of those offences. Again, this provision is designed to avoid the need for a separate appeal against sentence. Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.310]. Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) at [20.4.1.9].

Appeal against finding of unfitness to stand trial Jurisdiction [6.250]

Section 14A(1) of the CMIUTA states:

In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if the question has arisen whether an accused is unfit to stand trial and on an investigation under this Part a jury finds that the accused is unfit to stand trial, the accused may appeal to the Court of Appeal against the finding on any ground of appeal, with the leave of the Court of Appeal.110

A person is “unfit” to be tried for an offence if: (1) because the person’s mental processes are disordered or impaired, the person is or, at some time during the trial, will be – 109 CMG v The Queen [2013] VSCA 243 at [44]; Heath (a Pseudonym) v The Queen [2014] VSCA 319. This power can be exercised even where the relevant sentence was an aggregate sentence. For discussion of s 569(1) of the Crimes Act 1958 (forerunner to CPA s 277), see A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters 2014) at [17.140]. See also McL v The Queen (2000) 203 CLR 452; [2000] HCA 46. 110 Section 14A was inserted into the CMIUTA by cl 370 of the Criminal Procedure Bill 2009. Prior to this amendment, an appeal against a finding of unfit to stand trial was dealt with under s 570C of the Crimes Act 1958 (Vic) by applying the procedure then set out in s 570A of the Crimes Act 1958 (Vic).

[6.270]

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(a) unable to understand the nature of the charge; or (b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or (c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or (d) unable to follow the course of the trial; or (e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or (f) unable to give instructions to his or her legal practitioner. (2) A person is not unfit to stand trial only because he or she is suffering from memory loss.111

Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 12.7.1.10. Procedure [6.260] The appeal must be commenced within 28 days of the finding: Form 6-2F.112 The notice must set out the specific grounds of appeal rather than in general terms. The Court of Appeal may treat the hearing of the application as the hearing of the appeal, and if the court grants leave to appeal then no separate notice of appeal is required.113 The Registrar of Criminal Appeals provides a copy of the notice to the respondent. 114 Test for determining appeal [6.270]

Section 14A(4) of the CMIUTA provides:

(1) On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that – (a) the finding of unfitness to stand trial is unreasonable or cannot be supported having regard to the evidence; or (b) the trial judge made a material error of law; or 111 CMIUTA s 6(1). If a “real and substantial” question has arisen as to whether an accused is fit to stand trial, the trial judge must reserve the question for an investigation: CMIUTA s 9(1). A jury determines this question. If the jury find the accused is fit to stand trial, the trial resumes as normal: CMIUTA s 12(1). If the jury find the accused is not fit to stand trial, the judge must determine if the accused is likely to become fit to stand trial within the next 12 months. If the judge determines the accused is likely to become fit to stand trial within the next 12 months, the trial is adjourned to that date: CMIUTA s 12(2). If the judge determines otherwise, then a “special hearing” must be held within three months: CMIUTA s 12(5). At the special hearing the jury determines if the accused is: (a) not guilty of the offence charged; (b) not guilty of the offence because of mental impairment; or (c) the accused committed the offence charged or an alternative offence: CMIUTA s 17. 112 CMIUTA s 14A(2). For Form 6-2F, see Supreme Court (Criminal Procedure) Rules 2008 r 2.18. 113 Supreme Court (Criminal Procedure) Rules 2008 rr 2.20 and 2.21. 114 CMIUTA s 24AA(3).

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(c) for any other reason the court considers that the finding should not stand. (5) In any other case, the Court of Appeal must dismiss an appeal under subsection (1).

Section 14A(4) – (5) broadly follow s 276 of the CPA in that the first limb focuses on the reliability of the verdict of the jury; the second limb on legal errors by the trial judge; and the final limb is a “catch-all” provision to cover any reasons why the finding of unfitness should not stand. Powers of Court of Appeal if appeal upheld [6.280] If an appeal against a finding of unfitness to stand trial is upheld, s 14A(6) – (9) of the CMIUTA states: (6) If the Court of Appeal allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either – (a) refer the matter to the Trial Division of the Supreme Court or the County Court for trial and the accused may be tried for the offence charged against the accused; or (b) remit the matter for a rehearing of the investigation under this Part as to whether the accused is fit to stand trial. (7) Despite subsection (6), if the Court of Appeal allows an appeal under subsection (1) but considers that the accused is unfit to stand trial, it may affirm the finding and refer the matter to the Trial Division of the Supreme Court or to the County Court. (8) If the Court of Appeal remits a matter under subsection 6(b) – (a) it may give directions concerning the manner and scope of the rehearing, including a direction as to whether the rehearing is to be conducted by the same judge or a different judge; and (b) the court conducting the rehearing, whether constituted by the same judge or a different judge, must hear and determine the matter in accordance with the directions, if any. (9) On remitting or referring a matter under this section, the Court of Appeal may remand the accused in custody or grant bail to the accused or make any other order that the court considers appropriate for the safe custody of the accused.

Thus, after the finding of unfitness to stand trial is “set aside”, the Court of Appeal has three options. First, it can refer the case back to the trial court and the trial can commence in the normal manner on the basis that the accused is fit to stand trial. This course may be appropriate where the Court of Appeal is satisfied the verdict of the jury is unsafe and unsatisfactory. Second, the case can be remitted back to the trial court for a rehearing of the investigation. The Court of Appeal may, for example, be satisfied the trial judge erred in law in the way the investigation was conducted. The third option under s 14A(7) would seem to apply where, for example, the Court of Appeal is satisfied the trial judge erred in law in a material way, but the Court of Appeal is satisfied that the evidence overall establishes the accused is unfit to stand trial.

[6.290]

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Appeal against verdict of not guilty because of mental impairment [6.290]

Section 24AA(1) of the CMIUTA states:

In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if a verdict of not guilty because of mental impairment is recorded against a person, the person may appeal to the Court of Appeal against the verdict on any ground of appeal, with the leave of the Court of Appeal.115

The finding of “not guilty because of mental impairment” could arise from a “special hearing” into whether the accused is fit to stand trial or during the course of a criminal trial even where the accused has not raised mental impairment as a defence.116 Under CMIUTA s 21(4), where the prosecution and the defence agree the defence of mental impairment is established, and the judge agrees, the judge can direct that a verdict of not guilty because of mental impairment be recorded.117 The appeal is commenced by filing with the Registrar a notice of application for leave to appeal using Form 6-2G of the Supreme Court (Criminal Procedure) Rules 2008.118 The notice must set out the grounds of appeal specifically and not in general terms.119 The Registrar of Criminal Appeals provides a copy of the notice to the respondent.120 On hearing the application for leave, the Court of Appeal can treat the application for leave as the hearing of the appeal, in which case the notice of application for leave is sufficient notice of appeal.121 Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 18.6. 115 Section 24AA of the CMIUTA was also inserted into the Act by cl 371 of the Criminal Procedure Bill 2009 (Vic). Prior to this amendment, an appeal against a finding of mental impairment was dealt with under s 570A of the Crimes Act 1958 (Vic) by applying the procedure then set out in s 570B of the Crimes Act 1958 (Vic). The defence of mental impairment is made out if “at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that: (a) he or she did not know the nature and quality of the conduct; or (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong)”: CMIUTA s 20. The defence of mental impairment is not available if the true mental state of the accused was one of a drug induced psychosis: R v Konidaris [2014] VSC 89 at [18]. 116 Hawkins v The Queen (1994) 179 CLR 500. Mental impairment is available as a defence under the CMIUTA s 20(1). 117 See, eg, R v Konidaris [2014] VSC 89. 118 Supreme Court (Criminal Procedure) Rules 2008 r 2.19. 119 Supreme Court (Criminal Procedure) Rules 2008 r 2.19(2). 120 CMIUTA s 24AA(3). 121 Supreme Court (Criminal Procedure) Rules 2008 rr 2.20 and 2.21.

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[6.300]

Test for determining appeal [6.300]

Section 24AA(4) – (6) of the CMIUTA states:

(4) On an appeal under subsection (1), the Court of Appeal must allow the appeal 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 a result of an error or 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. (5) Despite subsection (4), the Court of Appeal may dismiss an appeal that would otherwise be allowed under that subsection if – (a) none of the grounds for allowing the appeal relates to the issue of the mental impairment of the appellant; and (b) the court considers that, but for the mental impairment of the appellant, the proper verdict would have been that the appellant was guilty of an offence other than the offence charged. (6) In any other case the Court of Appeal must dismiss an appeal under subsection (1).

The similarity of CMIUTA s 24AA(4) to s 276 is not accidental. Section 24AA(4) “also follows, to the extent reasonably possible, the structure of the substantive appeals provisions in the Bill, particularly clauses 274–277”.122 Powers of Court of Appeal if appeal upheld [6.310] If an appeal under s 24AA is upheld, the Court of Appeal has two basic options. Section 24AA(7) – (9) of the CMIUTA state: (7) If the Court of Appeal – (a) allows an appeal under subsection (1) on a ground that the verdict of not guilty because of mental impairment ought not to stand; and (b) considers that the proper verdict would have been guilty of an offence, whether the offence charged or an offence available as an alternative verdict – the Court of Appeal must substitute for the verdict a verdict of guilty of that offence and may make any order, or exercise any power, that the court from which the appeal was brought could have made or exercised. (8) Subject to subsection (7), if the Court of Appeal allows an appeal under subsection (1), it must set aside the verdict and either – (a) enter a judgment and verdict of acquittal; or (b) order a new trial. (9) If the Court of Appeal orders a new trial, it may make any order referred to in section 24(1)(a), (b), (c), or (e) pending the new trial.

Section 24AA(7) of the CMIUTA applies where the Court of Appeal considers that the overall evidence establishes that the appellant is guilty of the offence charged (or an available alternative offence). This option applies, for example, when the ground of appeal is that the verdict of the 122 Criminal Procedure Bill 2009 (Vic), Explanatory Memorandum, cl 371.

[6.330]

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jury is unsafe and unsatisfactory. Section 24AA(8) of the CMIUTA applies in all other cases. The principles governing the discretion whether to order a new trial or a verdict of acquittal, applicable to s 277(1) of the CPA, should provide guidance for the discretion in s 24AA(8).

Other appeals under the CMIUTA DPP appeal against unconditional release [6.320] If a person is found not guilty because of mental impairment, and the judge orders unconditional release under s 23(b) of the CMIUTA, the DPP can appeal that decision to the Court of Appeal as of right under s 24A of the CMIUTA if the DPP thinks the order should not have been made and an appeal should be brought in the public interest. The DPP may, for example, take the view that unconditional release endangers the safety of the community. The appeal is commenced by filing a notice of appeal within 28 days of the decision.123 The notice must be signed personally by the DPP.124 On hearing the appeal, the Court of Appeal may either confirm the order or set aside the order and declare that the person is liable to supervision.125 If the Court of Appeal does order the person is liable to supervision, the court can remit the matter back to the originating court with or without directions, and the originating court must make a supervision order. Alternatively, the Court of Appeal can itself make a supervision order.126 Appeal against supervision order [6.330] If a supervision order is made by the originating court, both the accused and the prosecution can appeal that decision to the Court of Appeal. The accused can bring an appeal pursuant to CMIUTA s 28A(1) and the DPP (or the Attorney-General, the Secretary to the Department of Human Services or the Secretary to the Department of Health) can bring an appeal pursuant to CMIUTA s 28A(2). The appeal is commenced by filing a notice of appeal within 28 days of the supervision order. Upon hearing the appeal, the Court of Appeal can: (a) confirm the supervision order; or (b) set aside the supervision order and make some other supervision order in its place; or (c) set aside the order and remit the matter back to the originating court; or (d) set aside the supervision order and order the unconditional release of the accused.127 The Court of Appeal can make a range of related orders pending the making of a new 123 CMIUTA s 24A(1A). 124 CMIUTA s 24A(1B). 125 CMIUTA s 24A(2). 126 CMIUTA s 24A(3). 127 CMIUTA s 28A(3).

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supervision order. These include an order for bail or remand in custody, and an order for the medical examination of the accused.128 If a supervision order has been varied or confirmed, the person who is subject to the order can appeal to the Court of Appeal against the confirmation or variation,129 as can the Secretary to the Department of Human Services or the Secretary to the Department of Health.130 The DPP or the Attorney-General can also appeal the confirmation or the variation under CMIUTA s 34(3). On hearing the appeal, the Court of Appeal can confirm the supervision order or set aside the order and make another type of order, or set aside the order and remit the matter back to the originating court with or without directions. Appeal against revocation of non-custodial supervision order [6.340] If a court has revoked a non-custodial supervision order, the Secretary to the Department of Human Services or the Secretary to the Department of Health can appeal to the Court of Appeal as of right.131 The DPP or the Attorney-General can also appeal the revocation.132 On hearing the appeal, the Court of Appeal can confirm the revocation order or set aside the order and order supervision, or set aside the order and remit the matter back to the originating court with or without directions.133 Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.710].

Procedure on conviction appeals [6.350] The procedure governing appeals to the Court of Appeal is set out in CPA Ch 6, the Supreme Court (Criminal Procedure) Rules 2008 and the Supreme Court Practice Direction No 2 of 2011. For the purposes of this chapter, the key rules are found in O 2, “Criminal Appeals”, of the Supreme Court (Criminal Procedure) Rules 2008. The rules also provide the relevant forms. In brief summary, the rules provide that a notice of application for leave to appeal must be filed (containing the grounds of appeal) and accompanied by a written case. The Registrar obtains a copy of the 128 CMIUTA s 28A(5). The court cannot order the person be detained in custody unless the court has received a certificate under CMIUTA s 47 stating that facilities for such an order are available: CMIUTA s 28A(6). 129 CMIUTA s 34(1). 130 CMIUTA s 34(2). See Re “HA” [2014] VSC 237. 131 CMIUTA s 34A(1). 132 CMIUTA s 34A(2). 133 CMIUTA s 34A(3).

[6.370]

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transcript, which is provided to the parties, and the respondent files a written case in response. The Registrar then refers the application to either a single Appeal Judge, or two or more Appeal Judges, and the application for leave is determined with or without an oral hearing. The following flowchart sets out the overall procedure to be followed. Flowchart 6.1: Basic steps in application for leave to appeal conviction or sentence [6.360]

Application for leave to appeal conviction [6.370] An application for leave to appeal conviction is commenced with a notice of application for leave to appeal: Form 6-2A of the Supreme Court (Criminal Procedure) Rules 2008.134 The notice must be filed with the Registrar of Criminal Appeals of the Supreme Court within 28 days after 134 CPA s 275(1); Supreme Court (Criminal Procedure) Rules 2008 r 2.05(1).

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the day on which the applicant is sentenced, unless the time for filing has been extended under s 313 of the CPA.135 The notice of application must state each ground of appeal specifically, and not merely in general terms, and must be accompanied by a “written case in support”.136 The notice must be signed by the applicant or a lawyer on behalf of the applicant and it must set out particulars of the application. These include the applicant’s name, the offences convicted of, the trial judge, date of conviction and sentence. Although the Court of Appeal has made it clear that an application for leave will normally be determined “on the papers”, the notice has provision for the applicant to request an oral hearing of the application. If the applicant does not specifically request an oral hearing, the application will be determined on the papers.137 The grounds of an appeal are not limited by any criteria in the CPA and can arise in a variety of circumstances.138 In general, the grounds could relate to a judicial direction to the jury, the decision of the judge to exclude or admit key evidence, or anything that has happened in relation to the course of the trial.139 The extent of the various complaints that an applicant may have of the way the trial was conducted is open-ended. In drafting grounds of appeal, it is important to have regard to the grounds upon which the Court of Appeal can uphold an appeal against

135 CPA s 275(1). Rule 1.07 of the Supreme Court (Criminal Procedure) Rules 2008 sets out rules for calculating time. If time runs from a day or an event, then the day or event is excluded: r 1.07(2). If time is to end on a day or an event, then the day or the day of the event is included: r 1.07(3). If the last day for doing an act is a day when the office is closed, then the act may be done on the next day the office is open: r 1.07(5). 136 Supreme Court (Criminal Procedure) Rules 2008 r 2.05(4). 137 In Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3, the High Court held that a procedure whereby the South Australian Full Court of the Supreme Court determined an application for leave to appeal conviction on the papers, in private, did not deny the applicant natural justice. The court explained that an application for leave “is not a proceeding in the ordinary course of litigation” (at [9]) but rather is a preliminary procedure whereby an appellate court can control the volume of work requiring its attention. 138 Under the Public Prosecutions Act 1994 (Vic) s 47 a verdict of a jury on a trial on indictment, or an order made by the court in respect to the verdict, cannot be challenged, appealed against, reviewed, quashed, set aside, or called into question in any legal proceedings on the ground that the filing of the indictment was dependent upon the making of a “special decision” and that procedures with respect to the making of special decisions had not been complied with in relation to that special decision. 139 It is expected that trial counsel will draw the grounds of appeal: Practice Direction No 2 of 2011 s 2(5). A copy of the sound recording of the trial and charge is available from the Victorian Government Reporting Service. Once the application for leave to appeal has been filed, the Registrar obtains the relevant parts of the transcript.

[6.380]

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conviction under s 276 of the CPA: see [6.80]–[6.150]. It is also important to be as specific as possible in framing the grounds.140 The advice and input of trial counsel is essential. In deciding whether to commence an appeal, it is possible to obtain a recording of the relevant parts of the trial from the Victorian Government Reporting Service.141 Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1A.1. Written case [6.380] The purpose of the written case is “to enable the Court to grasp the facts and issues in the case and to decide the application without oral argument, and it should be prepared accordingly”.142 The written case in support must specify the following (paraphrased): (a) the conviction from which leave to appeal is sought; (b) the relevant facts (or attach a summary of agreed facts if available); (c) the grounds of appeal. The grounds: (i) must be numbered consecutively; and (ii) each ground must be sufficiently particularised to identify the matters relied upon; (d) a list of authorities (as shown in Annexure 2 of the Practice Direction No 2 of 2011); (e) a list of all material the applicant intends to rely upon; and (f) under the heading of each ground of appeal: (i) outline concisely each argument to be advanced, including reference to relevant authorities; (ii) identify by date and time each passage in the transcript considered necessary to be obtained; and (iii) identify any documents mentioned in the ground, by exhibit number (r 2.05(4).143 The written case must be concise and not exceed 10 pages of 12 point font.144 140 Supreme Court Practice Direction No 2 of 2011 s 4. 141 An order form is available at the web page of Court Services Victoria (Victorian Government Reporting Service). 142 Supreme Court of Victoria Practice Direction No 2 of 2011, s 4(4). 143 Supreme Court Practice Direction No 2 of 2011 s 4(5). 144 Supreme Court Practice Direction No 2 of 2011 s 4(6).

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[6.390]

Counsel and solicitors must not sign a notice of appeal or a written case unless they consider “the grounds to be reasonably arguable and would be prepared, if necessary, to argue them before the court”.145 Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1A.2. Filing of documents and role of the Registrar [6.390] The notice of application for leave to appeal conviction, written case, and any accompanying documents are filed electronically with the Court of Appeal Registry at [email protected]. The Registrar then checks the application and accompanying documents, and can reject an application for leave to appeal if it does not conform to the rules.146 The Registrar obtains a copy of the relevant transcript and provides a copy to the parties. The applicant can then revise the written case in light of the transcript.147 Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1A.7. Respondent’s documents [6.400] It is the role of the Registrar to provide a copy of the notice of application to the respondent within seven days after the day the notice of application is filed.148 The Registrar will also provide a copy of the applicant’s written case if it has been accepted for filing. The Crown is no longer expected to make submissions or appear on every application for leave to appeal. The court does, however, rely on the Crown to draw the court’s attention to any defects in the material filed by the applicant or where a point of law is disputed. In some cases the Registrar will require the Crown to respond to an application for leave. On an application for leave to appeal conviction “it is assumed that the Crown will (at least) file a written case in response to the applicant’s grounds and written case”.149 When the Crown responds to the application, it must file and serve a written case within 28 days from the day of being provided with a copy of the application.150 145 Supreme Court Practice Direction No 2 of 2011 s 4(8). 146 The Registrar is, however, empowered to dispense with the rules of the court: r 1.15(2.1). 147 Supreme Court Practice Direction No 2 of 2011 s 7. 148 CPA ss 275(2) and 279(2): Supreme Court Practice Direction No 2 of 2011 s 5(4). 149 Supreme Court Practice Direction No 2 of 2011 s 8(3). 150 Supreme Court Practice Direction No 2 of 2011 s 8(5).

[6.420]

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The Crown written case must respond point by point to each ground of the appeal and to each argument advanced in the applicant’s written case. Where a ground of appeal is that the verdict of the jury is unsafe and unsatisfactory, any written case by the Crown must include a schedule of the evidence and transcript references relevant to that ground, where the Crown intends to rely on that evidence to rebut the applicant’s argument. The Crown written case must comply with s 4 of Practice Direction No 2 of 2011.151 Accordingly, the written case should not exceed 10 pages in length. The applicant can subsequently revise their written case in light of the Crown’s written case. Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1A.3. Referral of the case [6.410] When all the required documents have been filed, the Registrar refers the application to either a single Judge of Appeal152 or to at least two Judges of Appeal153 for determination.154 The usual course is that the application is referred to a single judge, but if the application raises a novel point of law, the matter is likely to be referred to two or more judges of the Court of Appeal. If the application is to be heard by two or more Judges of Appeal, it is expected that counsel will appear on the hearing. If the application is referred to a single Judge of Appeal and the judge dismisses the application, the applicant has a right to have the application reheard by two or more Judges of Appeal.155 Applying for leave to appeal conviction (or sentence) out of time [6.420] In general, in the absence of good reasons for a delay in filing a notice of application for leave to appeal, and merit in the proposed grounds, an extension of time will not be granted. Under CPA s 313(1) the Court of Appeal or the Registrar of Criminal Appeals may extend the time within which: “(a) a notice of appeal or notice of application for leave to appeal may be filed under this Part; or (b) a notice referred to in paragraph (a) may be served”. 151 Supreme Court Practice Direction No 2 of 2011 s 8 (6). 152 Pursuant to CPA s 315(1). 153 Pursuant to r 2.06 of the Supreme Court (Criminal Procedure) Rules 2008 and in accordance with s 11 of the Supreme Court Act 1986 (Vic). 154 In deciding how to refer a case, the Registrar takes into account the complexity and seriousness of the matter and the need for “efficient and expeditious dispatch of applications”: Supreme Court Practice Direction No 2 of 2011 s 93. 155 CPA ss 275(1) and 315(2).

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[6.430]

The application in the first instance is to be made to the Registrar.156 If the Registrar refuses the application, the applicant can elect to have the application heard by the Court of Appeal.157 The notice of application to extend time under CPA s 313 must be in Form 6-2H.158 The application must be supported by an affidavit stating the reasons for not filing the application within time and the application and affidavit must be filed with the application for leave to appeal,159 otherwise the Registrar will not permit the application to be filed out of time.160 In seeking an application to extend time, the applicant must surmount two obstacles. First, there must be good reasons to explain the delay in making the application for leave to appeal: “Ordinarily, time will not be extended unless there is an adequate explanation for failing to file within time.”161 Second, there must be merit in the proposed ground(s) of appeal. Approach of the Court of Appeal to extend time [6.430] In R v John Edward Darby,162 Gowans J set out the following principles, which have, in general, been followed ever since: The principles which govern an application for extension of time are as follows: (1) the prescription by the statute of the time limit for giving notice is intended to secure finality, and compliance is intended to be required in the ordinary case; (2) extension of the time is a matter for discretion of the Court and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension; (3) rigid restrictions cannot be imposed on the exercise of the discretion, but in general, the Court will require special and substantial reasons for extending the time; (4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be; (5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal and it would probably succeed; (6) a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.163 156 Supreme Court (Criminal Procedure) Rules 2008 r 2.23(1). Under the Supreme Court (Criminal Procedure) Rules 2008 r 1.06, for the purposes of exercising any power or function conferred on the Registrar, the Registrar may constitute the Court of Appeal and may exercise the jurisdiction and powers of the court to the extent necessary to exercise those powers or functions. 157 Supreme Court (Criminal Procedure) Rules 2008 r 2.23(3)(b). 158 Supreme Court (Criminal Procedure) Rules 2008 r 2.22. 159 Supreme Court (Criminal Procedure) Rules 2008 r 2.22. 160 Supreme Court Practice Direction No 2 of 2011 s 5(3). 161 Supreme Court Practice Direction No 2 of 2011 s 5(2). 162 R v John Edward Darby (unreported, Supreme Court of Victoria, 2 May 1975). 163 R v John Edward Darby (unreported, Supreme Court of Victoria, 2 May 1975). For discussion of relevant principles, see Efandis v The Queen (2014) 41 VR 456; [2014] VSCA

[6.430]

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In R v Davis,164 the court stated: It is to be emphasised that the Court’s decisions upon applications of this kind involve discretionary considerations, and the longer the time which elapses between the closure of the statutory time limit and the date of the application, the more exceptional will the circumstances have to be. Certainly, the applicant must, in any case, put forward material to demonstrate satisfactory reasons for the failure to comply with the time and also to show, in the event that the time lapse is considerable (as it is in this case), that there are such merits in the proposed appeal that it will probably succeed.165

If the Registrar refuses an application to extend time under CPA s 313(1), the applicant is entitled to have the Court of Appeal determine the application to extend time.166 If a single Judge of Appeal refuses to extend time, the applicant can also elect to have the application heard by two or more Judges of Appeal.167 After deciding whether or not to extend time, the Registrar then notifies the applicant in writing of the decision: Form 6-2I.168 If the application to extend time is refused, and the applicant elects to have the application determined by the Court of Appeal, the appropriate form is provided to the applicant by the Registrar upon notification of the Registrar’s decision: Form 6-2J.169 The applicant must return the form within 10 days. If the form is returned to the Registrar, the Registrar must notify the applicant that it has been received and, if appropriate, the hearing date. In most cases where the applicant has elected to have the application determined by the Court of Appeal, the court will expect to determine the application without oral argument, on the basis of the application and any supporting materials.170 However, the applicant can request an oral hearing by returning the required election notice (Form 6-2) indicating that an oral hearing is required.171 If an oral hearing is required, the Registrar will fix a date.172 Ordinarily, if the Court grants an extension of time to apply, it will also hear the application for leave to appeal.173 The Crown may file a written 42. See also Kumar v The Queen [2014] VSCA 102; Roth (a Pseudonym) v The Queen [2014] VSCA 242; Prasoeur v The Queen [2014] VSCA 354; Jopar v The Queen (2013) 275 FLR 454; [2013] VSCA 83 at [56]; Warwick v The Queen [2014] VSCA 114; Arnautovic v The Queen [2011] VSCA 216 at [53]; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. 164 R v Davis (2003) 5 VR 538; [2003] VSCA 173. 165 R v Davis (2003) 5 VR 538; [2003] VSCA 173 at [5]. 166 CPA s 313(2). 167 CPA s 315(2. 168 Supreme Court (Criminal Procedure) Rules 2008 r 2.23(3). 169 Supreme Court (Criminal Procedure) Rules 2008 r 2.24(1). 170 Supreme Court Practice Direction No 2 of 2011 s 14. 171 Supreme Court Practice Direction No 2 of 2011 s 14(3). 172 Supreme Court Practice Direction No 2 of 2011 s 14(4). 173 Supreme Court Practice Direction No 2 of 2011 s 14(5).

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submission addressing the application for leave to extend time at least 10 days prior to the hearing date of the renewed application (bearing in mind at this stage the Crown will not have filed a written case in response). Unless the Registrar gives notice to the Crown requiring it to appear, the Crown will not be expected to appear at the hearing of a renewed application for an extension of time.174 The time limit for oral argument on a renewed application is 15 minutes for the applicant and 10 minutes for the Crown. Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.1A.8. The leave application [6.440] A single Judge of Appeal can grant or refuse leave to appeal, but is not empowered to decide the appeal itself.175 The judge will determine the merits of the application on the written materials, assuming the applicant has not requested an oral hearing.176 If an oral hearing is held, the time limit for the applicant is 15 minutes and 10 minutes for the Crown.177 The basic test applied is whether one or more grounds of the application is “reasonably arguable”.178 It would be wrong for the judge to refuse leave to appeal on the basis that he or she thought the ground would not be made out when considered by the Court of Appeal.179 To do so would pre-empt the determination of the Court of Appeal. 174 Supreme Court Practice Direction No 2 of 2011 s 14(6). 175 Under rr 2.06 and 2.07(1) of the Supreme Court (Criminal Procedure) Rules 2008 a single Judge of Appeal can determine the application for leave. Pursuant to the CPA s 315(1) a single Judge of Appeal can constitute the Court of Appeal in order to give leave to appeal; review a refusal to certify (ie certify an interlocutory appeal decision); extend time for filing or serving a notice of appeal; extend time for filing an application for leave to appeal; grant bail; order a stay of the sentence; and call on a court to show cause why a question of law should not be reserved for determination by the Court of Appeal. 176 Supreme Court (Criminal Procedure) Rules 2008 r 2.07(2); see also Supreme Court Practice Direction No 2 of 2011 s 11(1). 177 Supreme Court Practice Direction No 2 of 2011 s 11(7). 178 See, eg, DeSilva v The Queen [2015] VSCA 290 at [73]; Sutton (a pseudonym) v The Queen [2015] VSCA 251 at [56]. This is the same test applied at common law for an application for leave to appeal a sentence: see R v Blick (1999) 108 A Crim R 525; [1999] VSCA 211 at [19], aff’d in R v Raad (2006) 15 VR 338; [2006] VSCA 67. 179 R v Blick (1999) 108 A Crim R 525; [1999] VSCA 211 at [19]. Clearly, in determining an application for leave to appeal, the judge is performing a different function to an appellate court determining the appeal itself. For a useful list of circumstances when leave to appeal conviction is likely to be granted, see D Mildren, The Appellate Jurisdiction of the Courts in Australia (Federation Press, Sydney, 2015) p 56.

[6.460]

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(The test for leave to appeal conviction in Victoria is similar to the common law tests used in other jurisdictions in Australia.180 In Western Australia for example, the statutory test is whether the ground has “a reasonable prospect of succeeding”.181 It is not surprising that the leave test throughout Australia is similar given that the purpose or function of an application for leave to appeal is the same.)182 After reading the materials, the judge has four options:183 • grant leave to appeal (on all the grounds); • grant leave to appeal on some grounds but refuse leave on other grounds; • refuse leave to appeal; or • refer the case to two or more Judges of Appeal. Leave granted [6.450] If leave to appeal is granted, or the case is referred to the Court of Appeal, the Registrar notifies the applicant: Form 6-2DA. Similarly, if leave to appeal is granted on some grounds or leave is refused, the Registrar notifies the applicant: Form 6-2DB.184 If leave is granted, the notice of application for leave is treated as a notice of appeal.185 Leave not granted [6.460] If a single Judge of Appeal dismisses the application for leave to appeal on all grounds or on some grounds, the applicant can elect to renew the application before two or more Judges of Appeal.186 To do this, he or she must complete Form 6-K and return it to the Registrar within 10 days.187 The Court of Appeal may consist of two judges who can grant leave to appeal, grant leave to appeal on some grounds, refuse leave to appeal, or refer the case to the Court of Appeal consisting of not fewer than three judges.188 It is expected that the renewed application is determined on the papers, but the applicant can elect for an oral hearing: 180 In New South Wales for example, the test is whether there is a “reasonably arguable case”: Bailey v DPP (1988) 34 A Crim R 154 at 155; Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72]. In South Australia the test is “arguable case”: R v O, B [2015] SASCFC 157 at [14]. 181 Criminal Appeals Act 2004 s 27(2). 182 The primary function of leave (or special leave) requirements is to enable an appellate court to control the volume of its work: Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3 at [9]. As discussed in Chapter 9 of this book, the special leave requirement in the High Court performs the same basic role: see Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194; [1991] HCA 43 at [36]. 183 Supreme Court (Criminal Procedure) Rules 2008 r 2.07(2). 184 Supreme Court (Criminal Procedure) Rules 2008 r 2.07(3). 185 Supreme Court (Criminal Procedure) Rules 2008 r 2.09.2. 186 CPA s 315(2); Supreme Court (Criminal Procedure) Rules 2008 r 2.08(2). 187 Supreme Court (Criminal Procedure) Rules 2008 r 2.08(2). 188 Supreme Court (Criminal Procedure) Rules 2008 r 2.08(3).

256

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[6.470]

Form 6-2K. It is more common for an oral hearing to be held than the matter determined on the papers. It is not expected that the Crown would appear on a renewal application. The Court of Appeal can treat the hearing of the application for leave to appeal as the hearing of the appeal itself and the outcome of the appeal can be announced immediately.189 The Registrar notifies the applicant of the outcome of the application: Form 6-2DC. Presence of appellant [6.470] Under r 2.36 of the Supreme Court (Criminal Procedure) Rules 2008: “The appellant is entitled to attend the hearing of an appeal or an application for leave to appeal unless the Court of Appeal or a Judge of Appeal directs otherwise or these Rules otherwise provide.”190 If the appellant does not appear at a hearing, the application for leave or the appeal may be determined in their absence.191 If the appellant elects to be present, he or she can appear by way of audio-visual link if it is practicable to do so.192 Forfeiture and destruction of property during appeal period [6.480] It is not uncommon for a court to order the forfeiture and destruction of property following a conviction – for example, drugs or drug manufacturing equipment. Under CPA s 312(1) such an order is stayed during the appeal period, unless forfeiture or destruction is permitted by some other law. The provisions of the Confiscation Act 1997 (Vic) are not affected by CPA s 312(1). Report of trial judge [6.490] Under CPA s 316, on an appeal to the Court of Appeal, the Registrar of Criminal Appeals can request the trial judge to provide a report “giving the opinion of the trial judge on the case or on any point arising in the case.”193 This is designed to help the Court of Appeal better

189 Supreme Court (Criminal Procedure) Rules 2008 r 2.09.1. 190 Section 329(1) CPA states that an accused must appear at every hearing in the criminal proceedings against the accused unless otherwise provided by the CPA or the rules of court. This would not appear to include the hearing of an appeal. 191 Supreme Court (Criminal Procedure) Rules 2008 r 2.36(2). 192 Supreme Court (Criminal Procedure) Rules 2008 r 2.36(3). 193 Under Supreme Court (Criminal Procedure) Rules 2008 r 2.42(1) the trial judge must provide the report “promptly”. When requesting the report, the Registrar must also provide the judge with a copy of the notice of appeal, or notice of application for leave to appeal, and any other document the Registrar thinks is material.

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understand the issues in the appeal by providing the perspective of the trial judge.194 The court can, however, determine the appeal in the absence of the report.195 Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1110]. Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Chs 20.6 and 20.4.1A.

The appeal hearing [6.500] Assuming that leave to appeal conviction has been granted, the court can give directions to the parties regarding the filing of the outline of arguments and further directions hearings, or the court can remit the matter back to the Registrar for further case management.196 The Registrar prepares a summary which includes reference to the transcript and materials. This summary assists the Court of Appeal in referring to the facts and issues in an efficient manner. The court refers to the summary as the “neutral summary”. Prior to the appeal the Registrar provides a copy of the summary to the parties for any corrections. The Court of Appeal has a duty to deal with each ground of appeal.197 At the start of the hearing, the case is called out and the applicant is identified. Counsel announce their appearances. Counsel for the Crown deal with any preliminary points. The report of the trial judge is then read. Counsel for the applicant make submissions. Counsel for the DPP respond to the submissions. Counsel for the applicant respond if desired. Sometimes written submissions are sought. Finally, the court makes its decision. After hearing the appeal, the intention of the court will be to deliver judgment shortly after oral arguments conclude.198 Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1140]. 194 R v Juric (2002) 4 VR 411. The NSW Law Reform Commission has recommended abolition of the trial judge providing his or her notes: see New South Wales Law Reform Commission, Criminal Appeals, Report No 140 (2014) at [10.11]. 195 Supreme Court (Criminal Procedure) Rules 2008 r 2.42(4). 196 See Supreme Court Practice Direction No 2 of 2011, ss 18 and 19. 197 Jones v The Queen (1989) 166 CLR 409; R v Chai (2002) 76 ALJR 628. 198 Supreme Court Practice Direction No 2 of 2011 s 19(3).

258

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[6.510]

Raising points on appeal not raised at trial [6.510] On an appeal (conviction and sentence), the appellant may attempt to rely on a point or an argument that was not raised at the trial. For example, a ground of an appeal against conviction may be that the trial judge failed to give a particular direction or the direction given was erroneous but, at the trial, the appellant failed to request the particular direction or failed to object to the direction given, and also failed to request a new direction be given. Alternatively, the ground of appeal may be that the judge’s charge to the jury was erroneous in some manner but trial counsel failed to raise the alleged error with the trial judge. This is a highly important consideration for the Court of Appeal. The general approach is that failure to object or to raise the point at trial is an “obstacle in the path of the applicant” rather than being fatal to a successful appeal. If the Court of Appeal is satisfied a substantial miscarriage of justice has occurred in the trial, the failure of trial counsel (to make an objection or make a relevant submission) will not be fatal to the appeal. The failure to object is governed by common law principles and, to some extent, the Jury Directions Act 2015 (Vic). Common law principles [6.520] At common law, counsel (defence and prosecution) has an obligation: to take objection to matters which are prejudicial to the fair trial of the accused and … the failure to take exception presents a serious obstacle to the raising of such matters on appeal. This case stands as a warning not only that defence counsel and counsel who fail to take appropriate exceptions are in breach of their obligations both to their clients and the court, but also that the failure to take exception may prevent the issue being raised on appeal.199

In R v Clune (No 2),200 Callaway J stated: There is however no inflexible rule in Victoria that an exception must be taken at trial, nor is it permissible to formulate general rules fettering the discretion of this court on a criminal appeal to allow a new point to be raised or our duty to rectify a substantial miscarriage of justice.201

Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.360]. 199 R v Wright [1999] 3 VR 355 at 356; see also R v Caine (1990) 48 A Crim R 464 at 475; R v Roberts (2001) 53 NSWLR 138. For the application of this principle to the prosecution, see DPP v Coleman (2001) 120 A Crim R 415 at 421; R v Tait (1979) 46 FLR 386; and DPP v O’Neill [2015] VSCA 325. 200 R v Clune (No 2) [1996] 1 VR 1. 201 R v Clune (No 2) [1996] 1 VR 1 at 6.

[6.530]

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Jury Directions Act 2015 [6.530] The Jury Directions Act 2015 (Vic) now governs the circumstances in which a jury direction must be given in criminal trials. The Jury Directions Act 2015 (Vic) has replaced the Jury Directions Act 2013 (Vic). In Xypolitos v The Queen,202 the Court of Appeal (referring to the Jury Directions Act 2013 (Vic)) stated: The Act does not diminish the obligations of counsel which previously existed, but extends them. The Act broadens counsel’s duty to the court and as the parties’ legal representatives. The trial judge must be informed by counsel as to the directions that are required in order that the accused receive a fair trial according to law. Any failure by defence counsel to comply with the obligations under the Act potentially affects the rights of an accused on appeal.203

In Xypolitos one of the grounds of appeal (in the written case) was that a particular jury direction caused a substantial miscarriage of justice (ground 1(a)), and another ground was that the judge failed, or failed to properly, direct the jury on a separate point: ground 1(b). At trial the defence had failed to take exception to the impugned direction referred to in ground 1(a) and did not seek a further direction in respect to ground 1(b), which, on the appeal, the appellant argued should have been given. Under s 15 of the 2013 Act (now s 16(1) of the 2015 Act), the trial judge was required to give a direction even if the direction was not requested: (1) Despite sections 13 and 14, the trial judge must give the jury any direction that is necessary to avoid a substantial miscarriage of justice even though – (a) the direction relates to a matter that defence counsel – (i) has indicated under section 10 is not in issue; or (ii) has omitted to indicate under section 10 is in issue; and (b) the prosecution or defence counsel – (i) has requested under s 11 that the trial judge not give the direction; or (ii) has omitted to request under s 11 that the trial judge give the direction.

The Court of Appeal in Xypolitos stated: Trial counsel was obliged by s 11 to have identified the error, if it be a misdirection, and to have requested the direction necessary to remedy it. His failure to do so would be fatal to the applicant’s submission that there was an irregularity in the trial process unless it could be shown that the judge was required by s 15 to have given the further directions, whether requested or not, as they were necessary to “avoid a substantial miscarriage of justice”.204

The issue thus became whether the trial judge had a residual obligation to give the directions. The court stated: 202 Xypolitos v The Queen [2014] VSCA 339. 203 Xypolitos v The Queen [2014] VSCA 339 at [26]. 204 Xypolitos v The Queen [2014] VSCA 339 at [33].

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The legislature has now given statutory expression to the residual obligation of the trial judge. The legislature has chosen not to use the common law formulation of “a perceptible risk of miscarriage”. Under the common law, it was sufficient to enliven the residual duty that the judge identified a (real) risk of miscarriage. Whereas the common law test was a test of prudence – requiring that “perceptible risks” be eliminated – the test under s 15 is one of necessity to “avoid a substantial miscarriage of justice”.205

And Where it is submitted on appeal that the trial judge erred in failing to give the direction, the question is whether the trial judge ought to have formed the view that it was necessary to give the direction to avoid a substantial miscarriage of justice. If not, there was no error and the ground of appeal must fail.206

The Court of Appeal therefore had to determine whether the trial judge ought to have formed the view that it was necessary to give the direction to avoid a substantial miscarriage of justice. The court held that, in determining this question, the phrase “substantial miscarriage of justice” in s 15 does not have the same meaning as it does in s 276 of the CPA: The test, for the purpose of s 276, imports the jurisprudence discussed in Baini v The Queen that is applicable to the appellate task. Its meaning in that context cannot inform the trial judge’s task. It is to be remembered, in the appellate context, that for the purpose of s 276(1)(b) and (c) “a substantial miscarriage of justice” may be affected by the strength of the prosecution case at trial. The evidence properly admissible at trial may require the conclusion that a verdict of guilty was inevitable. The jury’s guilty verdict may bear upon the question. It is not the function of a trial judge to undertake that sort of evaluation of the evidence.207

The test that should be applied is: [T]he judge must be positively satisfied that the direction in question is necessary to avoid a substantial miscarriage of justice. It requires a state of affirmative satisfaction by the trial judge that the direction is of such central importance to one or more issues in the trial that, if the accused is convicted, a failure to give the direction will have occasioned a miscarriage of justice … The appellate court must determine whether the trial judge should have concluded that the direction was necessary.208

The court concluded that the trial judge was not required to give the direction. The Jury Directions Act 2015 (Vic) has altered the test that a trial judge must apply in determining whether a (non-requested) direction should or should not be given. Section 16 (replacing the 2013 s 15) now states: 205 Xypolitos v The Queen [2014] VSCA 339 at [37]. 206 Xypolitos v The Queen [2014] VSCA 339 at [38]. 207 Xypolitos v The Queen [2014] VSCA 339 at [39]. 208 Xypolitos v The Queen [2014] VSCA 339 at [44]–[45].

[6.550]

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(1) The trial judge must give the jury a direction if the trial judge considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12.

Before giving this direction the judge must inform the parties and invite submissions as to whether there are substantial and compelling reasons for giving the direction: s 16(2)(b).209 Accordingly, if a ground of appeal against conviction asserts that the trial judge failed to give a particular direction, the Court of Appeal will be required to determine if the judge had an obligation under s 16(1) of the Jury Directions Act 2015. This in turn requires a determination as to whether, in the circumstances of the particular trial, there were “substantial” and “compelling” reasons for giving the direction. If there were not, that ground of appeal will fail. Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.360]. Judicial College of Victoria, Victorian Criminal Charge Book (2016) at [3.1A.1]. Bail pending appeal [6.540] The right of a person in custody to apply for bail pending the appeal is found in s 310 of the CPA, which provides: (1) A prisoner within the meaning of the Corrections Act 1986 who appeals, or applies for leave to appeal, may apply to the Court of Appeal to be granted bail. (2) On an application under subsection (1) the Court of Appeal may grant the prisoner bail pending the appeal.

The general approach of the courts is: “Bail pending appeal will only be granted where exceptional circumstances are shown.”210 Exceptional circumstances [6.550] In Re Pennant,211 the court regarded the fact that the custodial portion of a partially suspended sentence would have been fully served 209 The new test in s 16 is designed to “separate the meaning of this clause from the interpretation of ‘substantial miscarriage of justice’ in the Criminal Procedure Act 2009 and will avoid complexities in the wording of the test and the application of the test by trial judges”: Jury Directions Bill 2015 (Vic) Explanatory Memorandum cl 16. 210 Re Zoudi [2006] VSCA 298 at [2]. The phrase “very exceptional circumstances” is also used but the approach is the same regardless of which form of words is used: Re Clarkson [1986] Vic Rp 54; [1986] VR 583 at 584. For general discussion, see G Hampel, D Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) pp 90–95. 211 Re Pennant [1997] 2 VR 85.

262

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[6.550]

by the time the application for leave to appeal conviction and sentence was determined, as an exceptional circumstance, and granted bail pending the appeal.212 In Re Zoudi,213 the court stated: It has long been accepted in this Court that, in determining whether exceptional circumstances exist, it is relevant to consider the likely expiry, before the appeal is heard, of the whole or a substantial portion of – (a) the non-suspended portion of a partly-suspended sentence; or (b) the period after which the applicant is to be released on recognisance.214

In Re Zoudi a five-member Bench of the Court of Appeal held that another relevant consideration is the likely expiration of the non-parole period: For the purposes of determining whether exceptional circumstances exist, the expiry of the non-parole period should – unless it appears that the applicant will not be released at or about that time – be treated as a relevant consideration of the same kind as the expiry of the non-suspended portion of a partly-suspended sentence.215 … Axiomatically, whether bail will be granted in a particular case will depend on all the circumstances, of which the expiry of the non-parole period is one. There may be countervailing considerations, of the “unacceptable risk” variety, which mean that bail will be refused despite the fact that the non-parole period (or the suspended portion of a partially suspended sentence) will have expired before the appeal is heard. The question of whether the applicant can establish that he or she has reasonable prospects of success is another factor that must be considered. That is not to say that the application will fail because of the applicant’s inability the existence of such prospects.216

The court was satisfied exceptional circumstances had been established: “Unless bail pending appeal was granted, therefore, the applicant would have completed service of the non-parole period of his sentence before the applications are heard and determined.”217 Other factors contributed to the court being satisfied of exceptional circumstances – for example, the Crown conceded that the appeal was not without prospects of success. In Re DBA218 the applicant would only have served about half of the non-parole period by the time his appeal against conviction was heard. The court stated: “On its face there is nothing exceptional about this circumstance.”219 212 Re Pennant [1997] 2 VR 85. 213 Re Zoudi [2006] VSCA 298. 214 Re Zoudi [2006] VSCA 298 at [2]. 215 Re Zoudi [2006] VSCA 298 at [4]. 216 Re Zoudi [2006] VSCA 298 at [27]. 217 Re Zoudi [2006] VSCA 298 at [38]. 218 Re DBA [2008] VSCA 138. 219 Re DBA [2008] VSCA 138 at [16].

[6.560]

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In Re Momcilovic,220 the appellant was granted bail on the basis of a Crown concession that there was sentencing error which would require re-sentencing of the appellant.221 The grant of bail was based solely on the concession with respect to the sentence appeal. In DPP v Theodorellos222 the applicant would have served 58% of the non-parole period before his appeal would be heard. The court stated: “This is one consideration going to the question of exceptional circumstances, but it is only one. There are others. The chance of success on the appeal is also relevant.”223 Bail was refused. In Ash v The Queen224 the applicant had filed application for leave to appeal conviction and sentence. By the time his appeal would be heard he would have served the whole of the partially-suspended sentence. The Crown also conceded the application for leave to appeal had some chance of success. Bail was granted. In Pillay and Toganivalu v The Queen225 the applicants had been sentenced to 15 months’ imprisonment, 10 months of which was suspended for two years. Beach JA granted bail holding that exceptional circumstances had been demonstrated. By the time the application for leave was heard, the period of imprisonment would have expired, or be nearly complete, the applicant had previously been on bail for two years, was detained in protective custody, had not previously been in custody, had no prior convictions, was young and resided in New South Wales.226 Procedure on bail application [6.560]

Section 10 of Practice Direction No 2 of 2011 provides that:

(1) An application for bail must be served on the Crown at least 24 hours before the application is filed with the Court. This will enable the Crown to make representations (written or oral) about the application and any conditions of bail. (2) Most applications for bail pending appeal are determined by a single judge: Rule 2.38. 220 Re Momcilovic [2008] VSCA 183. 221 Re Momcilovic [2008] VSCA 183. The fact that the grounds of appeal against conviction were arguable was not sufficient to grant bail: see Re DBA [2008] VSCA 138. The Crown conceded that, on re-sentencing, the head sentence could be lower and so could the non-parole period or suspended sentence. The court stated (at [14]): “[W]e had to proceed on the basis that – on the worst view for the appellant – her sentence appeal would succeed and on re-sentencing, the custodial portion of the sentence (whether fixed as a non-parole period or as the non-suspended portion of a partly-suspended sentence) was very likely to be reduced.” 222 DPP v Theodorellos [2010] VSCA 21. 223 DPP v Theodorellos [2010] VSCA 21 at [6]–[7]. 224 Ash v The Queen [2010] VSCA 117. 225 Pillay and Toganivalu v The Queen [2014] VSCA 141. 226 For detailed discussion of relevant authorities, see El-Hilli and Melville v The Queen [2015] NSWCCA 146.

264

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[6.570]

(3) Ordinarily, an application for bail pending appeal will not be considered before the applicant’s grounds of appeal and accompanying written case have been filed.

Rule 2.38 of the Supreme Court (Criminal Procedure) Rules 2008 provides: (1) If the Court of Appeal grants an appellant bail under s 312 of the Act, the Court may make such orders in relation to bail as it sees fit. (2) An appellant who is on bail shall, when the appeal is called on before the Court of Appeal, place himself or herself in the custody of such persons as the Court directs.

Bail after appeal pending new trial [6.570]

Section 323 of the CPA states:

If on an appeal the Court of Appeal orders a new trial or remits a matter to the Trial Division of the Supreme Court or the County Court, the Court of Appeal may remand the appellant in custody or grant the appellant bail pending the commencement of the new trial or the remitted matter.

The Court of Appeal can issue any warrant it considers necessary for enforcing orders of the court.227 An example could be a warrant for the arrest of the appellant if the appellant has failed to appear at the new trial. Section 277(2) of the CPA requires the Court of Appeal to order that the appellant appear on a specified date for the new trial. Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1120]. Costs on successful appeal [6.580]

Under CPA s 409:

No costs are to be allowed to a party to – (a) an appeal under Part 6.3; or (b) a new trial; or (c) a proceeding preliminary or incidental to an appeal or new trial.

On an appeal against conviction, the appellant could, however, apply for an indemnification certificate under s 14 of the Appeal Costs Act 1998 (Vic): (1) If an appeal to a superior court against a conviction for an indictable offence succeeds and the court quashes or sets aside the conviction, the appellant may, whether or not the court orders a new trial, apply to the court for, and the court may grant, an indemnity certificate in respect of costs. (2) If, on an appeal referred to in subsection (1), the superior court orders a new trial, the appellant, in their application under that subsection for an indemnity certificate, may apply for the inclusion in that certificate of any additional costs that they will pay, or will be ordered to pay, as a consequence of the order for a new trial. 227 CPA s 325.

[6.600]

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265

Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 18.4.3. Abandonment of the application or the appeal [6.590] An appeal to the Court of Appeal may be abandoned in accordance with the rules of the Supreme Court.228 Under the Supreme Court (Criminal Procedure) Rules 2008 abandonment of an application for leave to appeal or to appeal (including a Crown appeal) is commenced by filing Form 6-2N any time prior to the hearing of the appeal.229 Reopening an application or appeal: correcting minor errors [6.600] The general principle is that once an appeal or an application has been heard and determined, and the record of the court is “perfected”, the appeal or application cannot be reopened; the court is functus officio.230 An appellate court does not possess an inherent jurisdiction to vary its own orders. In R v GAM (No 2),231 Winneke CJ stated that: this Court has no power to reopen either an application for leave to appeal or an appeal (whether against conviction or sentence) which has been determined on the merits on the grounds of fresh evidence.232

The basis of this general rule is the principle of finality. There must be an end to litigation. The record of the court is “perfected” when it is formally entered on the court records. However, in Burrell v The Queen,233 the court emphasised that in determining this question, it is not so much a matter of which form is used, but rather how effect is to be given to the principle of finality.234 If the record of the court has not been perfected, the court could reopen the matter and correct any substantive mistakes.235 There are some exceptions or qualifications to this general rule: 228 CPA s 314; see also Supreme Court (Criminal Procedure) Rules 2008 rr 2.40 and 2.41. An abandonment may not be set aside except upon application with leave of the court: Keshtiar v The Queen [2011] VSCA 122. 229 Supreme Court (Criminal Procedure) Rules 2008 r 2.40. 230 R v McNamara (No 2) [1977] 1 VR 257 at 268; R v Grierson (1937) 54 WN (NSW) 144a; followed in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34. For discussion of when judgments of acquittal and conviction are perfected following a trial, see NH v Director of Public Prosecutions [2016] HCA 33 at [9]. 231 R v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117. 232 R v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117 at [25]. 233 Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34. 234 Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [18]. In R v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117 at [4] Winneke J referred to the Registrar sending the notice of outcome of appeal to the parties. 235 NH v Director of Public Prosecutions [2016] HCA 33 at [70]; Smith v New South Wales Bar Association (1992) 176 CLR 256, 265.

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1. Courts have an inherent power to correct a clerical error or other type of minor error which does not affect the substance of the order or judgment. This is known as the “slip rule”.236 Rule 1.14 of the Supreme Court (Criminal Procedure) Rules 2008 states: For the sake of removing doubt, it is declared that the inherent power of the Court to correct a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission may be exercised at any time.

Under s 104A(1) Sentencing Act 1991 (Vic) the judge or magistrate who passed sentence may on his or her own initiative or on application by the defence or prosecution, amend the judgment or sentence if satisfied that it contains a clerical mistake, an error from an accidental slip or omission, a material miscalculation of figures or mistake in the description of a person thing or matter, a defect of form or that it fails to deal with a matter that it would have undoubtedly dealt with if the attention of the judge or magistrate had been drawn to it. The amendment power in s 104A(1) can also be exercised by the Court of Appeal (s 104A(5)). The power can be exercised at any time and in the absence of the parties (s 104A(4)). Under s 104B of the Sentencing Act 1991 (Vic) if a court (including on an appeal) has imposed a sentence which is contrary to law or failed to impose a sentence required by law, then the court can reopen the proceedings and impose a sentence that is in accordance with the law. A penalty is not “contrary to law” only because the decision to impose it was reached by a process of erroneous reasoning or factual error. (s 104B(6)). This section significantly limits the circumstances in which a court could reopen a proceeding. The possibility that proceedings could be reopened under s 104B is not to be taken into account in determining for the purposes of an enactment whether the proceeding has finally been disposed of (s 104D). 2. If an applicant or appellant has abandoned an appeal or an application for leave, the appeal is treated as if the appeal or application has been dismissed,237 and no further application for leave to appeal conviction or sentence is permitted even where fresh evidence exists – except where the decision to abandon the appeal was the result of a fraud or mistake.238 This limited exception of fraud or mistake has not been applied where a person wants to reopen an appeal that has been finally determined, even where there exists fresh evidence. 236 NH v Director of Public Prosecutions [2016] HCA 33 at [71]. 237 Supreme Court (Criminal Procedure) Rules 2008 r 2.41. If an appeal to the County Court is abandoned, the appeal must be struck out: CPA s 266(4). Once the appeal is struck out, the County Court may not set aside the order striking out the appeal: CPA s 266(6). 238 R v Gardiner [1970] VR 278 at 280; see also Tognolini v The Queen (No 2) [2012] VSCA 311. In R v Zakarian [1971] VR 455 the Court of Appeal was satisfied the prisoner did not intend to file a notice of abandonment of application for leave to appeal conviction, but only abandon his application for leave to appeal sentence. There had been a mistake and so the notice of abandonment of application for leave to appeal conviction was a nullity. See also R v Moore [1957] 1 WLR 841 at 842; R v Grantham [1969] 2 QB 574.

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Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1170].

PART B: SENTENCE APPEALS The right to appeal sentence [6.610] Section 278 of the CPA states239: “A person sentenced for an offence by an originating court may appeal to the Court of Appeal against the sentence imposed if the Court of Appeal gives the person leave to appeal.” The term “sentence” here is defined very broadly in CPA s 3 to include the following (paraphrased): • the recording of a conviction; • the following orders made under Pt 3 of the Sentencing Act 1991 (Vic): – an order made under Pt 3 (that is, ss 7 – 35) – for example, imprisonment, detention in designated mental health service, or drug treatment order; – an order made under Pt 3A (Community Corrections Order); – an order made under Pt 3B (fines); – an order made under Pt 3C (breach of sentence); – an order made under Pt 3D (superannuation order); – an order made under Pt 4 (restitution and compensation); and – an order made under Pt 5 (Court Assessment Order); • an order made under s 11 of the Sex Offender’s Registration Act 2004; and • an order made under s 84S or 84T of the Road Safety Act 1986. Further sources Judicial College of Victoria, Sentencing Manual (2016) at [5.2].

Can appeal be brought if appellant consented to the sentence? [6.620] Even if the appellant consented to the sentence imposed, the consent is not a bar to challenging the sentence on appeal. In Boulton v The Queen,240 the court stated: 239 This section of the chapter draws upon Justice Phillip Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 and Justice Phillip Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 Annotated Victoria (Thomson Reuters, subscription service) Vol 3 2016. 240 Boulton v The Queen [2014] VSCA 342.

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There is a more fundamental point, however. Once it is concluded that the sentence imposed was disproportionate to the offending, and hence outside the available range, Mr Clements could not be deprived of his right to appeal. Pursuant to s 281(1) of the Criminal Procedure Act 2009, this Court must allow the appeal if Mr Clements satisfies it that: (a) there is an error in the sentence first imposed; and (b) a different sentence should be imposed. Even in the special circumstances involved in Mr Fitzgerald’s case, we would not regard the fact of informed consent as precluding a later complaint that the sentence was erroneous or excessive … [T]here is no suggestion in the legislation that the giving of consent should be treated as a waiver of the right to appeal which s 278 of the Criminal Procedure Act 2009 confers on an offender. Obviously enough, if the CCO as pronounced by the court is infected by legal error (for example, a condition purportedly attached to the order is not authorised by the legislation), there could be no inhibition on the ability of the offender to challenge it. Nor, we think, can the consent deprive the offender of the ability to contend on appeal that the sentence imposed was manifestly excessive; that is, outside the range reasonably open to the sentencing court in the circumstances. Put simply, consent could not validate an unlawful sentence.241

Test to determine appeal against sentence [6.630]

Under CPA s 281:

(1) On an appeal under s 278, the Court of Appeal must allow the appeal if the appellant satisfies the court that – (a) there is an error in the sentence first imposed; and (b) a different sentence should be imposed. (2) In any other case, the Court of Appeal must dismiss the appeal under section 278. (3) If the Court of Appeal is considering imposing a more severe sentence than the sentence first imposed, the Court of Appeal must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that first imposed.

A failure to issue the warning in s 281(3) could invalidate the sentence if a new sentence is imposed.242

Relevance of House v The King [6.640] Under CPA s 281 it is not sufficient for the appellant to only show the sentence is infected by some type of error. The error must be of such a nature as to justify substituting a different sentence. If the 241 Boulton v The Queen [2014] VSCA 342 at [311]–[313]. 242 In Firth v County Court of Victoria [2014] VSC 448, Forrest J held that the failure of a County Court judge to issue the warning on an appeal from the Magistrates’ Court, invalidated the sentence imposed, and provided a basis for a grant of certiorari: at [46]–[47].

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appellant can satisfy the Court of Appeal that the error was material, then the sentencing discretion is reopened.243 The principles set out in House v The King244 (discussed in Chapter 1 of this book at [1.890]) apply to an appeal against sentence because deciding a sentence is an exercise in judicial discretion.245 In summary, the House principles are (paraphrased): • It is not enough that the appellate judges consider they might have imposed a different sentence if they were the primary judge. • It must appear that there has been some error in the exercise of the discretion. • Examples of errors are: – acting upon a wrong principle of law; – allowing irrelevant matters to affect the decision; – mistaking the facts; and – failing to take into account a relevant consideration. • If an error of this type is shown, the appellate court can exercise its own discretion in substitution for that of the primary judge. • In some cases it may not be obvious how the judge has erred, but the sentence is so unreasonable the appellate court can infer an error was made and a substantial wrong has occurred.246 A distinction can thus be drawn between “disclosed” error and “undisclosed” error. A disclosed error is a specific error of the primary judge which the appellant can refer to in the transcript or other materials. To succeed on the ground of undisclosed error, the appellant may not be able to point to any specific error of the trial judge, but the sentence is clearly beyond what is reasonable and just, having regard to the facts and circumstances of the particular case. This concept of undisclosed error forms the basis of one ground of appeal commonly relied on – manifest excess (or, in the case of a Crown appeal, manifest inadequacy). In R v Taylor,247 the Court of Appeal set out the court’s approach to an appeal against sentence: It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary, it will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into 243 An example of a material error is the failure of a sentencing judge to properly take into account current sentencing practices: Ashdown v The Queen (2011) 37 VR 341; [2011] VSCA 408 at [181] per Redlich JA. 244 House v The King (1936) 55 CLR 499; [1936] HCA 40. 245 In House v The King (1936) 55 CLR 499; [1936] HCA 40 the appeal was against the sentence. 246 House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504–505 (CLR). 247 R v Taylor [1958] VR 285.

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account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously – not merely arguably – too severe or too lenient, it will not interfere.248

Manifest excess as ground of appeal [6.650] To establish manifest excess as a ground of appeal the appellant must demonstrate that the sentence was not reasonably open to the sentencing judge. In Clarkson v The Queen,249 the court stated: [T]he ground of manifest excess will only succeed if it can be shown that the sentence was “wholly outside the range of sentencing options available” to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.250

In McPhee v The Queen251 the court expressed the test as “whether the sentence imposed was reasonably open to the sentencing judge”. In Soylemez v The Queen,252 the court stated: To establish manifest excess an applicant must establish that no reasonable judge could have imposed the sentence. The sentence must be manifest. It must be able to be described as plain, clear, obvious, apparent, unmistakable or some such synonymous adjective.253

In Nguyen v The Queen,254 the court stated: [T]he ground of manifest excess is difficult to establish. An applicant must show that the sentence fell outside the range of sentences that could be

248 R v Taylor [1958] VR 285 at 289. 249 Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157. 250 Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157 at 384 (VR) [89]; see also Phillips v The Queen (2012) 37 VR 594; [2012] VSCA 140 at [90]; McPhee v The Queen [2014] VSCA 156; Ayol v The Queen [2014] VSCA 151 at [31]-[32]; and DPP v Karazisis (2010) 31 VR 634 at 44 (VR) [127]. In McPherson v The Queen [2014] VSCA 59 at [36], Maxwell P stated: “the ground of manifest excess is difficult to establish. For it involves persuading the appellate court that, although there was no specific legal error in the sentencing, the sentence arrived at is nevertheless so plainly outside the range of sentences available to the judge in the circumstances of the case that appellate intervention is warranted.” 251 McPhee v The Queen [2014] VSCA 156 at [11]. 252 Soylemez v The Queen [2014] VSCA 23. 253 Soylemez v The Queen [2014] VSCA 23 at [6]. In McPhee v The Queen [2014] VSCA 156 at [9] the court stated “With respect, it should not be thought that an appeal on the ground of manifest excess imports into its analysis any notion of Wednesbury unreasonableness”. 254 Nguyen v The Queen [2014] VSCA 53.

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imposed in the reasonable exercise of the sentencing discretion. The excess must be manifest, in the sense that it is plain, clear, obvious, apparent, or unmistakable.255

In many cases where the appeal against sentence has been upheld on the ground of manifest excess, the Court of Appeal has noted that there is no apparent reason to explain why or how the judge fell into error. All that can be said is that the sentencing judge “misjudged” the appropriate sentence.256 The question of whether a particular sentence was reasonably open will usually require a comparison with current sentencing practices for the particular circumstances of the offence and the offender. Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016. Weight is part of manifest excess [6.660] When drafting grounds of appeal it is critical to note that arguments about weight (attaching to particular factors) can only be dealt with as particulars of a manifest excess ground (unless it is to be contended that a statement about weight made by the sentencing judge discloses a specific error, in which case the grounds of appeal should be expressed accordingly). In DPP (Vic) v Terrick,257 the court stated: The proposition that too much – or too little – weight was given to a particular sentencing factor is almost always untestable. This is so because quantitative significance is not to be assigned to individual considerations. The question to be addressed when the ground of manifest inadequacy – or, in a prisoner’s appeal, manifest excess – is advanced is whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations (whether aggravating, or mitigating, or both). If the conclusion is that the sentence was outside the available range, then it may be inferred that too much or too little weight was given to one or other consideration. But rarely, if ever, will it be possible – or necessary – for the appeal court to reach a conclusion on that question.258 255 Nguyen v The Queen [2014] VSCA 53 at [20]. 256 McPhee v The Queen [2014] VSCA 156 at [15]. 257 DPP v Terrick (2009) 24 VR 457; [2009] VSCA 220. 258 DPP v Terrick (2009) 24 VR 457; [2009] VSCA 220 at 459–460 [5]; see also Supreme Court Practice Direction No 2 of 2011 s 5(iii); A Freiberg and S Krasnostein, “Manifest Error: Grounds for Review” (2012) 36 Aust Bar Rev 54; A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.95].

272

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In Gorladenchearau v The Queen,259 the court stated: Axiomatically, a complaint about the weight given to a particular sentencing consideration is not a ground of appeal. As this Court has explained in Director of Public Prosecutions (Vic) v Terrick and again in Scerri v The Queen, the bringing together of relevant sentencing considerations in a sentencing decision does not involve – could not involve – the attribution of quantitative significance to individual qualitative factors. The only way in which this Court can evaluate a complaint about the weight given to a particular consideration is as a particular of the manifest excess ground. Under that ground, the Court will examine the sentence actually imposed, and ask whether it was reasonably open to the judge to impose that sentence if appropriate weight were given to all relevant factors.260

Common issues going to weight [6.670] When an applicant or an appellant argues that the sentence was manifestly excessive, the particulars of that ground will usually be expressed in terms of the sentencing court failing to give sufficient weight to one or more relevant factors, or that the court gave excessive weight to one or more relevant factors. The following section of the chapter sets out matters and issues that are commonly raised on sentence appeals. The intention is not to discuss each and every principle that can arise on a sentencing hearing, but simply to summarise the key principles and laws that often arise on appeals against sentence. Reference to more detailed sources is also provided. Plea of guilty [6.680] Under the Sentencing Act 1991 (Vic) s 5(2)(e) a sentencing court must have regard to “whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so.”261 When a court has reduced the sentence because of the plea of guilty, under s 6AAA of the Sentencing Act 1991 (Vic) the court is required to state the sentence and the non-parole period if any, that would have been imposed if the accused had not pleaded guilty.262 Whilst a court must have regard to the plea of guilty, the extent of any mitigation of sentence because of the plea is a matter of judicial discretion 259 Gorladenchearau v The Queen [2011] VSCA 432. 260 Gorladenchearau v The Queen [2011] VSCA 432 at [34] (footnotes omitted), referring to Scerri v The Queen [2010] VSCA 287 at [22]–[24], [30]. 261 Section 5(2E) of the Sentencing Act 1991 states that an offender who pleads guilty to an offence after the Court of Appeal has determined a question of law reserved under the CPA s 302(2), is to be taken to have pleaded guilty immediately after arraignment. This preserves the benefit available under the Sentencing Act 1991 s 5(2)(e). 262 For the Children’s Court see Children Youth and Families Act 2005 (Vic) s 362A. For discussion of difficulties that can arise with s 6AAA, see R v Fiaherty (No 2) (2008) 19 VR 305.

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and will vary depending upon the facts and circumstances of each case. It is however recognised by the courts that if the accused pleads guilty, then ordinarily, he or she will be entitled to a reduction in what otherwise would have been the sentence.263 This is referred to as the “sentencing discount”. This discount is in recognition of the utilitarian benefits of a plea of guilty for the administration of criminal justice, and the guilty plea is usually evidence of some remorse.264 The “sentence discount” must however be taken into account even if the plea is not indicative of remorse.265 Conversely, it is also recognised that a person should not receive additional punishment because they pleaded not guilty.266 The discount for a guilty plea will ordinarily apply regardless of the seriousness of the offence(s).267 However there can be cases where it is not appropriate to give the discount.268 In Phillips v The Queen269 Redlich JA and Curtain AJA stated: The exceptional case arises where the gravity or aggravating features of the offending conduct are of such order that even allowing the mitigatory effect of the plea, the maximum sentence remains appropriate. That is because the offender’s criminality so outweighs any circumstance of mitigation that are present.270

The discount should apply to the head sentence and not just the non-parole period.271 263 Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [11]; Siganto v The Queen (1998) 194 CLR 656 at 663-664 [22]. The sentencing discount also applies to federal offenders pursuant to Crimes Act 1914 (Cth) s 16A(2)(g). 264 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [74]. Also see the judgments of Kirby J and McHugh J in Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [65]-[68] (Kirby J) and [42] McHugh J; cited in in Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140 at [47]. 265 Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140 at [48]; R v Winchester (1992) 58 A Crim R 345 at 350; R v Morton [1986] VR 863. 266 R v Gray [1977] VR 225 at 231; Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at 351 (CLR). 267 Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140 at [39]; Freiberg A, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, 2014) p 379 and see H v Hall (1994) 76 A Crim R 454 at 469. 268 See for example, Hunter v The Queen [2013] VSCA 385. In R v Hall (1994) A Crim R 454, Crockett and Southwell JJ gave an example of where the plea is entered “at the eleventh hour” and where the Crown case was overwhelming. However, in Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140, Redlich AJ and Curtain AJA stated that the circumstances referred to in R v Hall would not be sufficient to give no weight to the plea: at [59]. 269 Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140. 270 Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140 at [67] citing R v Wangsaimas, Vanit & Tansakun (1996) 87 A Crim R 149 at 171. Their Honours noted (at [67]) that sometimes a sentence of life is imposed for murder notwithstanding a plea of guilty (citing R v Coombs [2011] VSCA 407 at [86]-[90]). 271 R v Duncan [1998] 3 VR 208 at 215.

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A substantial discount should be given to an offender who volunteers information about their other offences which the authorities were not aware of.272 This reduction has become known as the “Doran discount.”273 Freiberg states: “The timing of the plea is important. The earlier the plea, the greater the saving to the State and the greater the potential discount for its utilitarian benefit.”274

An important issue is the relationship between the strength of the Crown case and the extent of any mitigation given for a plea of guilty. In R v Pajic,275 Redlich JA outlined the ways in which the strength (or weakness) of the Crown case can be relevant to the assessment of any discount for a plea of guilty. However, because of uncertainty as to whether the principles in Pajic should still be followed in Victoria, a full bench of the Court of Appeal was assembled in Phillips v The Queen276 to determine this issue. In Phillips, Redlich JA and Curtain AJA provided a detailed analysis of the sentencing discount and more specifically, the relevance of the strength of the Crown case (Maxwell P agreeing). Their Honours distinguished between the objective utilitarian benefits derived from a plea of guilty (the “objective criteria”)277 and the subjective dimensions such as remorse and willingness to facilitate the course of justice (the “subjective criteria”).278 Their Honours listed ten matters which should inform a determination of the extent of any discount for a guilty plea. These matters are (in summary): 1. A discount for the utilitarian benefit of the plea must always be allowed- save for the exceptional category of case. 2. The exceptional case arises where the gravity of the offending conduct is of such order that no discount from the maximum sentence is appropriate. 3. The strength of the Crown case is irrelevant to the discount to be given for the utilitarian benefits of the plea as it does not bear upon the objective benefits of the plea. 272 Doran v The Queen [2005] VSCA 271 at [14]. 273 See for example Latina v The Queen [2015] VSCA 102, Dawson v The Queen [2015] VSCA 166 and JBM v The Queen [2013] VSCA 69. 274 Freiberg A, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, 2014) p 380 (quoting R v Town (1987) 30 A Crim R 220 at 224). 275 R v Pajic (2009) 23 VR 527; [2009] VSCA 53. 276 Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140. 277 These benefits include sparing victims and witnesses from having to give evidence, providing some closure for victims, providing certainty of outcome, resolving the crime and releasing investigators to other duties: Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140 at [38]. The strength of the Crown case is not relevant to these benefits (R v Majeric (2001) 121 A Crim R 451 at [33]). 278 These include remorse, contrition, willingness to faciliitate the course of justice, and acceptance of responsibility: Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140 at [69].

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4. A greater discount for the utilitarian benefit of the plea may be justified where the plea involves very considerable savings of costs to the community or some other very significant benefit can be seen to flow from the plea of guilty. 5. It is always a question for the sentencing judge whether remorse, willingness to facilitate the course of justice, and an acceptance of responsibility is to be inferred from the plea. 6. Where there is evidence, or a submission accepted by the sentencing judge, of these subjective criteria then they should be fully reflected in the discount. 7. The utilitarian benefits which flow from the plea may also inform the discount to be allowed for the willingness of the offender to facilitate the course of justice. 8. The weakness of the Crown case may also inform the extent of the offender’s willingness to facilitate the course of justice. 9. The sentencing judge will not need to separately deal with the objective criteria of the utilitarian benefit and the subjective criteria unless there is reason to conclude that less than the full discount will be given for the subjective criteria. 10. The strength of the Crown case can only support an inference that the subjective criteria played little or no role in the decision to plead guilty where the state of the contextual materials permits such a conclusion.279 Redlich JA and Curtain AJA stated: Some precision of approach is therefore required by the sentencing judge in complying with the obligation to take the plea of guilty into account. A less than intellectually rigorous approach creates the risk that the offender will not obtain the benefit to which he is entitled.280

In summary, a complaint about the weight attributed to a guilty plea is a complaint about one particular sentencing consideration in a matrix of sentencing considerations: As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.281

Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated)Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1030]. Freiberg A, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Lawbook Co., 2014) [6.10]-[6.40]. 279 Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140 at [36]. 280 Phillips v The Queen (2012) 37 VR 594; (2012) 222 A Crim R 149; [2012] VSCA 140 at [73]. The judge should expressly refer to taking into account the guilty plea. 281 R v Burke [2009] VSCA 60; (2009) 21 VR 471 at [31]-[32].

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Judicial College of Victoria, Sentencing Manual, [11.2] and [11.4.6.5]. Rejected plea offer [6.690] If the offender is ultimately convicted of offences to which he or she had earlier agreed to plead guilty (but the prosecution rejected that plea offer), the offender should ordinarily be entitled to the sentencing discount that they would have received if the original plea offer had been accepted.282 In Carr v The Queen,283 the court stated: These decisions, which include the very recent decision of Franklin, provide sound reasons why in principle it can be authoritatively stated that there will be circumstances in which, in sentencing, an allowance for the utilitarian benefit of a rejected offer to plead guilty should be made.284

In Rodriguez v The Queen,285 the court stated that: if the offender offers to plead guilty at an early stage to the charges upon which the prosecution ultimately proceeds, he may be entitled to have the discount for the plea assessed as at the time of his offer and without qualification for the fact that the Crown did not accept the offer until much later. Neither should the utilitarian benefit be reduced because other charges were contested on which he was not convicted. Here the applicant disputed the more serious charges which the prosecution did not ultimately pursue.286

In Phillips v The Queen,287 the court stated that whilst a rejected offer to plead guilty will not have a utilitarian benefit of the kind which results when a trial is voided, it may demonstrate acceptance of responsibility, remorse and willingness to facilitate the course of justice.288 Further sources A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) p 379. Judicial College of Victoria, Sentencing Manual (2016) at [11.4.6.5] and [11.2.5.2]. Remorse [6.700] The remorse of an offender (if demonstrated) is a relevant consideration in sentencing and, in general, reduces the moral culpability 282 Heaney v The Queen [1992] 2 VR 531 at 558; R v Ramage [2004] VSC 508 at [44]; Kells v The Queen [2013] VSCA 7 at [23]; Carr v The Queen [2012] VSCA 299 at [63]–[66]; and Sherna v The Queen [2011] VSCA 242. 283 Carr v The Queen [2012] VSCA 299. 284 Carr v The Queen [2012] VSCA 299 at [71]. 285 Rodriguez v The Queen [2013] VSCA 216. 286 Rodriguez v The Queen [2013] VSCA 216 at [34]. 287 Phillips v The Queen (2012) 27 VR 594; [2012] VSCA 140. 288 Phillips v The Queen (2012) 27 VR 594; [2012] VSCA 140 at [66], followed in Carr v The Queen [2012] VSCA 299 at [70].

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of the offender.289 Remorse is a factor to be taken into account separately from a guilty plea and is relevant to the rehabilitation component of a sentence.290 According to Freiberg: The existence or otherwise of remorse is a matter of judgment for the sentencing judge or magistrate who, having heard the evidence at trial and observed the offender, is best placed to determine its presence or absence and it will rarely be interfered with by an appellate court.291

In Va v The Queen,292 the court stated: The degree of remorse is ordinarily difficult to assess, as there is rarely convincing evidence available. It is usually a judge at first instance who is in the best position to evaluate its extent. In the absence of glaring error, an appellate court will rarely interfere with such findings.293

The burden is upon the appellant to prove his or her remorse on the balance of probabilities.294 There is, however, an important difference between remorse and regret at being caught: As these observations reveal, some of the evidence placed before His Honour was reflective of the appellant’s regret at the circumstances in which he found himself, as distinct from remorse for having killed Mr Alexander. A sentencing court should, of course, distinguish between the two.295

Further sources A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [6.95]. Judicial College of Victoria, Sentencing Manual (2016) at [10.13]. Delay [6.710] Excessive delay between the date of charge and the sentence is ordinarily a factor to be taken into account at sentencing, providing the 289 Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at [12]. 290 R v Gray [1977] VR 225 at 231; R v Whyte (2004) 7 VR 397; [2004] VSCA 5. 291 A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) p 409, quoting R v Whyte (2004) 7 VR 397; [2004] VSCA 5. 292 Va v The Queen [2011] VSCA 426. 293 Va v The Queen [2011] VSCA 426 at [15], quoting R v Whyte (2004) 7 VR 397 at 403; Cooper v The Queen (1998) 103 A Crim R 51 at 55; R v Fraser [2004] VSCA 147 at [17]; R v Kiss (1993) 69 A Crim R 436. A plea of guilty can in itself indicate remorse but in Phillips v The Queen (2012) 37 VR 594, [2012] VSCA 140 at [69] Redlich JA and Curtain JA stated “The conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists.” 294 Va v The Queen [2011] VSCA 426 at [15], quoting Carroll v The Queen [2011] VSCA 150 at [46]; R v Margach [2008] VSC 255 at [49]. 295 Va v The Queen [2011] VSCA 426 at [17], quoting Cooper v The Queen (1998) 103 A Crim R 51 at 55; DPP v Va [2010] VSC 311 at [20].

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delay was not the fault of the appellant.296 In general, it is not the cause of the delay that is relevant, but the effects of the delay.297 There are two ways in which delay can be relevant to sentence. First, the extent to which the offender has achieved rehabilitation during the delay affects the relevance of specific deterrence.298 Second, the delay can be a form of punishment in itself.299 In R v Todd,300 the Court stated that: Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.301

In Arthars v The Queen,302 the court stated: The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness. Chernov JA in R v Cockerell, in a statement subsequently affirmed in R v Tiburcy, expresses these principles thus: First and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.303

In Arthars the court continued: In such a context, it is the effect of any delay on the accused which ought to be considered, rather than whether the delay is explicable. Any delay caused 296 Chandler v The Queen [2010] VSCA 338; DPP v WRJ [2009] VSCA 174. 297 R v Merrett (2007) 14 VR 392; [2007] VSCA 1, followed in Reilly v The Queen [2010] VSCA 278 at [63]. 298 R v Miceli [1998] 4 VR 588; R v Merrett (2007) 14 VR 392 at 400–401. 299 R v Merrett (2007) 14 VR 392 at 400–401. 300 R v Todd [1982] 2 NSWLR 517. 301 R v Todd [1982] 2 NSWLR 517 at 519. 302 Arthars v The Queen [2013] VSCA 258. 303 Arthars v The Queen [2013] VSCA 258 at [25].

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merely by the exercise of the right to contest criminal charges and have the matter proceed to trial will never be regarded as the “fault” of the accused for these purposes. … When considering whether a delay requires the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay.304

However, where the delay is the result of the offender’s actions, little, if any, weight will be attached to the delay: The anxiety and stress brought about entirely by the applicant’s own refusal to co-operate with the prosecution until he reached the very door of the court and pleaded guilty need not be taken into account in sentencing.305

The prospect of the offender being deported is a relevant sentencing consideration.306 Further sources A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [6.170]. Judicial College of Victoria, Sentencing Manual (2016) at [11.6]. Hardship on offender [6.720] Hardship per se is not a relevant sentencing consideration unless there are exceptional circumstances.307 As Freiberg notes: A sanction imposed on an offender as the result of the commission of an offence is generally intended to impose hardship. Hardship that is above the usual incident of the sanction is generally accepted as a relevant factor in sentencing, whether it be due to illness or to the conditions of confinement.308

In R v Smith,309 the court stated: Generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or where there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.310

304 Arthars v The Queen [2013] VSCA 258 at [27]–[28]. 305 Arthars v The Queen [2013] VSCA 258 at [30]. 306 Guden v The Queen (2010) 28 VR 288, 294-295, [2010] VSCA 196 at [25]-[27] and Nguyen v The Queen [2016] VSCA 198 at [35]-[37]. 307 R v Smith (1987) 44 SASR 587; R v Van Boxtel (2005) 11 VR 258. 308 A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) p 415, referring to York v The Queen (2005) 225 CLR 466; [2005] HCA 60 at [23]; R v Tsiaras [1996] 1 VR 398. 309 R v Smith (1987) 44 SASR 587. 310 R v Smith (1987) 44 SASR 587, 589.

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In R v Eliasen,311 after sentence was imposed the offender was diagnosed with suffering from AIDS. On appeal against sentence, the Court of Appeal held that: the burden of the sentence to be served by the applicant will be increased by reason of the disease from which he is suffering. There are disadvantages (which outweigh any advantages) which will be undergone by him in the course of serving that sentence … [T]he condition will be worsened by the need to serve what, on any view, must be a prolonged period of incarceration.312

If the offender is a foreign national, does not speak English, and has no acquaintances in Australia, the additional hardship of imprisonment on the offender is a relevant sentencing consideration.313 Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1700]. Judicial College of Victoria, Sentencing Manual (2016) at [11.7]. Protective custody/prison hardship [6.730] An offender may be kept in stricter confinement than other prisoners because of their vulnerability to being assaulted, medical condition, being an informer or being a police officer or judicial officer. If a person is to be kept in protective custody for most, or a significant part, of the sentence of imprisonment, that fact is relevant to sentence because a person is sent to prison as punishment, not to be punished further whilst in prison. To the extent that the purpose of the term of imprisonment is to punish the offender, there should be some mitigation of the term of imprisonment to compensate for the additional or extra punishment the prisoner is likely to endure.314 In R v Holmes,315 the court stated: A prison sentence is designed to impose as a punishment a restriction on liberty. It is not designed, or intended, to expose a person to violence in prison. And the prison authorities do their utmost, faced with great difficulties, to prevent it…The court does not readily contemplate with equanimity a sentence of two years imprisonment on a young man of 24, who is described as

311 R v Eliasen (1991) 53 A Crim R 391. 312 R v Eliasen (1991) 53 A Crim R 391 at 396–397. 313 R v Pereira (1991) 57 A Crim R 46 at 48. 314 Freiberg states: “Where it has been shown that the conditions of custody are more onerous, then the courts will take this into account when considering the severity and impact of the sentence imposed”: A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) p 418. 315 R v Holmes (1979) 1 Cr App R (S) 233.

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intellectually sub-normal and sensitive, because in that situation the punishment is not only a restriction of liberty, but with the added penalty of solitary confinement.316

In R v Males,317 the Court of Appeal upheld an appeal against sentence on the basis that the sentencing judge had not been informed that the offender was in protective custody. The court stated: “Where a prisoner is being held in protective custody, that is a factor relevant to sentence.”318 However, the court also stated: The extent to which it is to be taken into account in the prisoner’s favour depends upon the source of the need for protection and, of course, upon the particular circumstance and likely duration of the protection.319 … It is incumbent upon counsel for both the prosecution and the defence to provide such information as is available as to the true circumstances of protective custody and the actual hardship such custody is likely to cause, if a submission is made before a sentencing judge that such a matter is relevant to the sentencing task faced by that judge.320

In R v Kasulaitis,321 the appellant was convicted of the attempted murder of his young son. On appeal, the court noted the appellant would spend the entire sentence in protective custody and stated: “Ten years imprisonment in protective custody is a far different thing from 10 years not in protective custody”.322 The court upheld the appeal and resentenced the appellant. Hardship of sentence on offender’s family [6.740] In general, hardship to an offender’s family arising from the sentence is not relevant to the sentence unless the circumstances are exceptional.323

316 R v Holmes (1979) 1 Cr App R (S) 233 at 235. Addressing harm to a prisoner is however more the responsibility of the correctional authorities than the courts: R v De Vroome (1988) 38 A Crim R 146. 317 R v Males [2007] VSCA 302. 318 R v Males [2007] VSCA 302 at [4], quoting R v Bangard (2005) 13 VR 146; [2005] VSCA 313 at 149 (VR). 319 R v Males [2007] VSCA 302 at [5], quoting R v ZMN (2002) 4 VR 537 at 543. 320 R v Males [2007] VSCA 302 at [40]. 321 R v Kasulaitis [1998] 4 VR 224. In this case the appellant was sentenced to 10 years imprisonment with a non-parole period of six years. On appeal this sentence was reduced to eight years with a non-parole period of five and a half years. 322 R v Kasulaitis [1998] 4 VR 224 at 232 per Batt JA. 323 R v Yates (1998) 99 A Crim R 483 at 486–487.

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In Markovic v The Queen,324 the court stated: “There must always be a place in sentencing for the exercise of mercy ‘where a judge’s sympathies are reasonably excited by the circumstances of the case’.”325 The court noted, however: It has long been the position at common law that, unless the circumstances are exceptional, family hardship is to be disregarded as a sentencing consideration. The contention advanced by each of the present applicants, however, was that even if the circumstances of family hardship were not adjudged exceptional, a sentencing court could nevertheless be called on to exercise – on that ground – what is sought to be characterised as a “residual discretion of mercy”.326 … The exceptional circumstance test has been adopted throughout Australia as governing the position at common law.327

The exceptional circumstances test arose because of the recognition that a sentence of imprisonment will invariably have an adverse impact on the offender’s family: “[T]o treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less”.328 An example of exceptional circumstances, justifying some reduction in sentence, could, however, be where both parents are imprisoned, leaving their young children without parental care.329 Reliance on family hardship is itself an appeal for mercy: [T]here can be no residual discretion to be “merciful” on grounds of family hardship in a case where the threshold test of “exceptional circumstances” is not satisfied. For it is the “residual discretion” to exercise mercy which is engaged when – but only when – the test is satisfied.330

However, in Markovic the court noted: The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor – for example, if the court is satisfied that this will make the experience 324 Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105. 325 Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105 at [1] per Maxwell P, Nettle, Neave, Redlich and Weinberg JJ, referring to R v Osenkowski (1982) 30 SASR 212 at 212–213. 326 Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105 at [3]. 327 Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105 at [11]. The Crimes Act 1914 (Cth) s 16A(2)(p) refers to the probable effect of the sentence on the family and dependants of the offender as a relevant sentencing factor. However, this has been interpreted as subject to the “exceptional circumstances” test: R v Carmody (1998) 100 A Crim R 41 at 45. 328 Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105 at [7]. 329 R v Vaughan (1982) 4 Cr App R 83; see also R v Haleth (1982) 4 Cr App R (S) 178; El-Hage v The Queen [2012] VSCA 309. 330 Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105 at [15].

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of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the “exceptional circumstances” limitation.331

Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated)Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1056]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [6.135]. Judicial College of Victoria, Sentencing Manual (2016) at [11.7.11] and [11.7.3]. Youth and relative youth [6.750] An offender’s youth is a primary sentencing consideration and rehabilitation should ordinarily be regarded as the central sentencing purpose.332 In Azzopardi v The Queen,333 the court referred to the following three reasons that lie behind this sentencing principle (in summary): (a) young offenders are immature and lack insight. They may not fully appreciate the seriousness of their actions; (b) courts recognise the potential for young offenders to be rehabilitated; and (c) courts recognise that the effect of incarceration in an adult prison will more likely impair rather than improve the offender’s prospects of successful rehabilitation.334 In Scammell v The Queen,335 the Court of Appeal reduced the sentence on the basis of the youth of the offender and his excellent prospects of rehabilitation.336 However, this general principle is not of universal application; much depends upon the individual circumstances of the particular offender and the offence. There are cases where the youth of the offender can take a “back seat” to other sentencing considerations.337 For example, where the 331 Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105 at [20] (emphasis added). 332 R v Mills (1998) 4 VR 235 at 241; Attorney-General v Chmil (unreported, VSCA, 1 August 1977); DPP v Anderson (2013) 228 A Crim R 140; R v Taylor (1999) 106 A Crim R 578 at 583. 333 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372. 334 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 at [34]–[37]. 335 Scammell v The Queen [2015] VSCA 206. 336 Scammell v The Queen [2015] VSCA 206 at [34]. 337 R v Bell [1999] VSCA 223 at [14].

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offences are particularly serious, the need for general and specific deterrence may prevail over rehabilitation as sentencing aims or purposes. In DPP v Lawrence,338 Batt JA stated that: with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant to the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence.339

In Azzopardi the court stated: The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation, may the mitigatory consideration of youth be viewed as all but extinguished.340

Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1990]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) Ch 16. Judicial College of Victoria, Sentencing Manual (2016) at [7.6.3.3], [10.7.1].

Other issues and principles often arising on appeal against sentence Purposes of sentencing [6.760]

Section 5(1) of the Sentencing Act 1991 provides that:

The only purposes for which a sentence may be imposed are – (a) to punish the offender to an extent and in a manner which is just in all the circumstances; (b) to deter the offender or other persons from committing offences of the same or a similar character; (c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; (d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; 338 DPP v Lawrence (2004) 10 VR 125. 339 DPP v Lawrence (2004) 10 VR 125 at 132. 340 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 at [44]; see also R v Giles [1999] VSCA 208 (murder); R v PDJ (2002) 7 VR 612 (murder); R v Tran (2002) 4 VR 457.

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(e) to protect the community from the offender; or (f) a combination of two or more of those purposes.

Whilst s 5(1)(f) recognises that a particular sentence may have several purposes, “it is clear that each of the purposes cannot equally co-exist”.341 Accordingly, any given sentence should have a primary or paramount purpose. Ideally, the sentence should balance all the various sentencing purposes that are applicable.342 On a sentence appeal, the appellant may argue that the sentencing court gave insufficient weight to one or more of these purposes, or gave excessive weight to one or more of these purposes, thereby resulting in a manifestly excessive, or a manifestly inadequate, sentence. The task of an appellate court determining if the judge at first instance gave proper weight to one or more of these purposes is exceedingly difficult because the accepted sentencing “methodology” is referred to as the “instinctive synthesis”.343 This requires the sentencer to take into account all the relevant sentencing purposes in a combined manner and arrive at the final appropriate sentence. Moreover, s 5 only compels the sentencing judge to “take into consideration” these sentencing purposes, none of which is determinative.344 The purpose or purposes of a sentence is of course only one matter the sentence has to take into account. There is a matrix of other information relating to the circumstances of the offender and the circumstances of the offence. Those circumstances shape the appropriate purpose of the sentence. To determine if proper weight was given to one or more of the sentencing purposes, some guidance can be found in the general principles applicable to each of these sentencing purposes. Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.710]. Judicial College of Victoria, Sentencing Manual (2016) Part A section 2. Punishment [6.770] The philosophical basis of punishment is “just deserts” or retribution. An essential requirement of punishment as a sentencing 341 P Priest, “Sentencing” in Freckelton (ed), Sentencing Act 1991 (Annotated)Victoria (Thomson Reuters, subscription service) 2016 at [3.1.710]. 342 R v Valentini (1980) 2 A Crim R 170 at 174. 343 The concept of “instinctive synthesis” is traced to R v Williscroft [1975] VR 292. In many subsequent cases the High Court has confirmed that the instinctive synthesis methodology is the correct approach at common law in Australia: see, eg, Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. 344 AB v The Queen (No 2) (2008) 18 VR 391 at [44]–[45]; see also A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [3.15].

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purpose is that the punishment be “proportionate” to the seriousness of the offence. The term “just” in s 5(1)(a) of the Sentencing Act 1991 encapsulates this requirement. The court is also required under s 5(2)(c) to take into account “the nature and gravity of the offence” and under s 5(2)(d) “the offender’s culpability and degree of responsibility for the offence”. The punishment in whatever form must be “just” punishment. A sentence which is disproportionate is unlawful. As a sentencing purpose or aim, just punishment is appropriate when sentencing for grave offences such as murder and culpable driving.345 Other kinds of cases where punishment is typically appropriate are crimes of personal violence,346 sexual offences,347 offences which are prevalent,348 and cases where the offender is a “professional” criminal.349 In Boulton v The Queen,350 the court stated that a Community Corrections Order can be a punitive sentence and should be used in appropriate cases for the purpose of punishment.351 [6.780]

Proportionality

Perhaps the most general common law sentencing principle is that a sentence must be proportionate to the seriousness of the offence and the moral culpability of the offender.352 At common law a disproportionate sentence is unlawful. Proportionality operates as a ceiling or a limit so as to prevent unduly severe sentences from being imposed to achieve a utilitarian purpose such as general deterrence or public protection. Proportionality can also operate as a floor in the sense that a sentence should not be disproportionately lenient.353 Proportionality can apply to a single sentence or to an aggregate sentence. However, because proportionality is so general and conceptual, it is difficult to empirically establish that the principle has been breached, except by showing the particular sentence is obviously and without doubt disproportionate to 345 R v Tran (2002) 4 VR 457 (culpable driving) and R v Cumberbatch (2004) 8 VR 9 (murder). 346 DPP v Lawrence (2004) 10 VR 125; DPP v Burgess (2001) 3 VR 363. 347 DPP v VH (2004) 10 VR 234; DPP v DJK [2003] VSCA 109. 348 R v Johnston (1995) 80 A Crim R 203 at 206. 349 R v Henderson [1999] 1 VR 830. 350 Boulton v The Queen [2014] VSCA 342. 351 Boulton v The Queen [2014] VSCA 342 at [129]. 352 Veen v The Queen (1979) 143 CLR 458 at 467; Veen v The Queen (No 2) (1987) 164 CLR 465; Hoare v The Queen (1989) 167 CLR 348 at 354; DPP v Brown [2009] VSCA 314. Proportionality is recognised in the Sentencing Act 1991 s 5(1)(a). The legislature can abrogate the principle of proportionality: see, eg, Sentencing Act 1991 s 6D (serious offender legislation). For discussion of how the principle of proportionality is applies to the imposition of a large number of counts see Redlich JA in Hoy v The Queen [2012] VSCA 49 at [17]-[18]. 353 This use of the principle is relevant to a Crown appeal: DPP v Anderson [2005] VSCA 68 at [30].

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the particular offence and the circumstances of the offender.354 A disproportionate sentence can be described as “manifestly excessive”. Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated)Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.720]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [3.45]–[3.100]. Judicial College of Victoria, Sentencing Manual (2016) at [6.2] and [7.2]. Deterrence [6.790] The Sentencing Act 1991 (Vic) s 5(1)(b) includes “specific” (or “special” deterrence) and “general” deterrence. The purpose of specific deterrence is to deter the offender before the court from committing the same or similar types of offences. The purpose of general deterrence is to deter other persons from committing the same or similar types of offences. It is difficult to set out detailed principles in respect to when specific deterrence should be the paramount consideration. General deterrence is an appropriate sentencing purpose in all but the most exceptional cases.355 In a number of recent cases on “insider trading” the courts have emphasised the importance of general deterrence in sentencing.356 Specific and general deterrence is particularly important in cases of sexual offences against children.357 Deterrence is also important in offences which appear to be more prevalent, such as “glassing”,358 and offences which are premeditated.359 If an offender has a significant psychiatric disability or illness, then deterrence is unlikely to play any significant part in the sentencing process.360 A Community Corrections Order can have a deterrent effect.361

354 See, eg, R v Krieg [2005] VSCA 23 at [41]. 355 R v Clare (1984) 14 A Crim R 322. 356 Kamay v The Queen [2015] VSCA 296 at [53]; and R v Xiao [2016] NSWSC 240 at [102]. 357 WCB v The Queen [2010] VSCA 230. 358 Winch v The Queen (2010) 27 VR 658; [2010] VSCA 141; R v Williscroft [1975] VR 292 at 299. 359 Such as “white collar crimes”: DPP v Bulfin [1998] 4 VR 114 at 132 (insider trading). 360 R v Tsiaras [1996] 1 VR 398 at 400. In such cases the issue for the court is not so much how the particular illness is classified, but rather ascertaining the effects of the illness upon the offender: R v Verdins (2007) 16 VR 269; DPP v O’Neill [2015] VSCA 325 at [82]. 361 Boulton v The Queen [2014] VSCA 342 at [124].

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A sentence designed to act as a deterrent must still be proportionate to the overall level of offending.362 Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.730]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [3.100]. Judicial College of Victoria, Sentencing Manual (2016) at [7.3.]–[7.5]. Rehabilitation [6.800] Under s 5(1)(c) of the Sentencing Act 1991 (Vic) one of the purposes for which sentences may be imposed is “to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated”. Rehabilitation is, in general, appropriate as the primary sentencing purpose for young offenders.363 Further, where there has been extensive delay in the offender coming before the court, and during that period the offender has been engaged in rehabilitation, the courts are generally reluctant to interfere with that rehabilitation process, unless the offence deserves otherwise.364 Freiberg states: Good prospects of rehabilitation may be a mitigating factor, and for young offenders rehabilitation is regarded as a principal consideration … Neither at common law nor in the general statutory statements of the purposes of sentencing is rehabilitation elevated to the primary aim of sentencing. It will be part of the instinctive synthesis and will be subjugated to other sentencing principles if the offence is particularly serious.365

Whilst rehabilitation can be an aspect of the sentencing process, it is not the sole purpose.366 Rehabilitation can be enhanced by a shorter than otherwise non-parole period to provide for a longer period of supervision in the community.367 If the offences were committed when the offender was a young person and he or she is not sentenced until many years later, then rehabilitation can be an important sentencing consideration if the person has not reoffended and otherwise has rehabilitated themselves.368 362 Bifel v The Queen [2013] VSCA 82 at [4]. 363 R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 at [34]–[37]. 364 Duncan v The Queen (1983) 47 ALR 746 at 749. 365 A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) pp 257–258. 366 R v Ioannou (1985) 16 A Crim R 63. 367 R v Williscroft [1975] VR 292 at 300. 368 R v Boland (2007) 17 VR 300; Sherritt v The Queen [2015] VSCA 1.

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However, a sentence with a rehabilitative component must still be proportionate to the overall offending.369 Rehabilitation has both private and public benefits.370 As a sentencing aim, rehabilitation is not confined to offenders who are ill (mentally or physically) or who come from a deprived background.371 Where rehabilitation is well underway prior to sentencing, and there is no need to protect the community from the offender, punitive and deterrent aspects of sentencing should not be permitted to prevail.372 Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.740]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) Ch 16. Judicial College of Victoria, Sentencing Manual (2016) at [7.6.1]. Denunciation [6.810]

Freiberg describes denunciation thus:

Denunciation relates to the impact the judicial pronouncement itself has in reaffirming shared values and in censuring the offender. Kirby J has described it as follows:373 A fundamental purpose of the criminal law, and of the sentencing of convicted offenders, is to denounce publicly the unlawful conduct of an offender. This objective requires that a sentence should also communicate society’s condemnation of the particular offender’s conduct. The sentence represents “a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law”.374

It is the conduct of the offender that is denounced, not the offender.375 Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.750]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [3.110]. 369 Freeman v Harris [1980] VR 267 at 281. 370 DPP v Malikovski [2010] VSCA 130 at [151]. 371 Vartzokas v Zanker (1989) 51 SASR 277. 372 Duncan v The Queen (1983) 47 ALR 746 at 749. 373 Referring to R v M (Ca) [1996] 1 SCR 500 at 558. 374 A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) p 260. Denunciation serves to enhance social cohesion by emphasising important shared social values and norms. 375 R v Beard [1967] Crim LJ 376.

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Judicial College of Victoria, Sentencing Manual (2016) at [7.7]. Community protection [6.820] Where there is clear evidence that the offender represents a real danger to the community, community protection can be the paramount sentencing consideration. Incapacitation of an offender is achieved by an immediate custodial sentence.376 Nevertheless, whilst protection of the community can be a legitimate sentencing purpose, it is subject to the requirement that the sentence be proportionate to the seriousness of the crime. It is impermissible to sentence a person, in the name of community protection, to a term of imprisonment which is disproportionate to what is deserved.377 The legislature has, however, created a number of exceptions to the “proportionality” principle in the form of “indefinite sentences” under the Sentencing Act 1991 (Vic)378 and post-sentence detention under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).379 Community protection may have a more significant role to play in cases of personal violence than in cases involving financial loss and property damage.380 Community protection can also be a paramount consideration in sentencing for multiple sexual offences.381 Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1800] and [3.1.760]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) Ch 16. Judicial College of Victoria, Sentencing Manual (2016) at [7.8].

376 R v Brewster (1980) 2 Cr App R (S) 191. 377 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [9]. 378 Sentencing Act 1991 ss 18A, 18B. See P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1800]; see also R Fox, Victorian Criminal Procedure (Monash Law Book Co-Operative, Melbourne, 2010) p 419. 379 See A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) Ch 14. 380 Chester v The Queen (1988) 165 CLR 611 at 618; Frost v The Queen [2012] VSCA 282. 381 R v Taylor (1992) 58 A Crim R 337 at 342; Beyer v The Queen [2011] VSCA 15.

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Maximum penalty [6.830] Section 5(2)(a) of the Sentencing Act 1991 (Vic) states that in sentencing an offender a court must have regard to “the maximum penalty prescribed for the offence”. The maximum sentence serves as an indicator of the relative seriousness of the offence.382 In general, the maximum sentence is reserved for the worst examples of the particular offence, or for the worst category of cases for the particular offence – as distinct from the worst imaginable examples.383 In Ashdown v The Queen384 Redlich JA stated the maximum penalty “is prescribed for the worst class of the offence in question and is justified only for the worst examples of the offence likely to be encountered in practice.” In Markarin v The Queen,385 the High Court noted: Legislatures do not enact maximum sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance … It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.386

In MA v The Queen,387 Callaway JA stated: When regard is had to an increased penalty in sentencing an offender, as the learned judge did in this case, the court “steers by the maximum” in accordance with s 5(2)(a) and s 114 of the Sentencing Act 1991. It is a helpful metaphor, but two things should be said of it. One is that there is a difference between steering by the maximum and aiming at the maximum. The penalty prescribed for the worst class of case is like a lighthouse or a beacon. The ship is not sailed toward it but rather it is used as a navigational aid. The other is that by steering by the maximum may decrease the sentence that might otherwise be imposed as well as increase it, as in Nash v Whitford (1972) 2 SASR 333 at 334.388 382 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31]. 383 Bensegger v The Queen [1979] WAR 65 at 68; Ibbs v The Queen (1987) 163 CLR 447. It is always possible to imagine a worse example of any particular offence. 384 Ashdown v The Queen (2011) 37 VR 341; [2011] VSCA 408 at [188]. Also see A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) p 273. 385 Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25. 386 Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 at [30]–[31]. 387 MA v The Queen (unreported, VSCA, 18 March 1998). 388 MA v The Queen (unreported, VSCA, 18 March 1998).

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In Mansfield v The Queen,389 the applicant was convicted of multiple offences, including three charges of threat to kill. The trial judge mistakenly thought that the maximum sentence for threat to kill was 10 years’ imprisonment when in fact the maximum sentence was five years. The judge imposed a sentence of five years’ imprisonment on two of the threat to kill charges and six years’ imprisonment on the third charge of threat to kill. On appeal, the DPP conceded the error had been made and as the mistake affected the decision of the sentencing judge, the applicant had to be re-sentenced for those offences. The court imposed new sentences of two years’ imprisonment on the two charges of threat to kill, and three years’ imprisonment on the third charge of threat to kill. The total effective sentence was thereby reduced from 16 years to 14 years and the minimum term reduced from 12 years to 11 years.390 In Maher v The Queen,391 the sentencing judge was misinformed as to the correct statutory maximum. On appeal, the Crown conceded that the error was material and the applicant had to be re-sentenced. Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.780]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [4.15]. Judicial College of Victoria, Sentencing Manual (2016) at [8.2]. Current sentencing practices [6.840] Section 5(2)(b) of the Sentencing Act 1991 (Vic) requires a court to have regard to “current sentencing practices” (“CSP”) when sentencing an offender. CSP means present sentencing practices (as distinct from sentencing practices at the time of the offending).392 In most cases, CSP refers to terms of imprisonment but the phrase can refer to more than simply terms of imprisonment: Current sentencing practices is not simply concerned with fixing periods of imprisonment. Sentencing practices includes current practice with respect to the use of pre-sentence reports, drug and alcohol reports, and victim impact statements.393

The purpose of referring to CSP is to enhance consistency and equality in sentencing so that the sentence in a particular case, in general terms, is 389 Mansfield v The Queen [2013] VSCA 161. 390 Mansfield v The Queen [2013] VSCA 161 at [26] and [38]. 391 Maher v The Queen [2011] VSCA 136. 392 Stalio v The Queen (2012) 223 A Crim R 261; [2012] VSCA 120 at [12]. 393 Stalio v The Queen (2012) 223 A Crim R 261; [2012] VSCA 120 at [18].

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similar to sentences imposed in other cases where the facts and circumstances are broadly similar.394 Having regard to CSP also enhances adequate standards of punishment within the perimeters set by the legislature.395 CSP can also be used to justify a reduction in a sentence.396 In Ashdown v The Queen,397 Redlich JA stated (referring to CSP): The term is to be understood as a particular, though not exclusive reference, to the kinds of sentences that are imposed for that offence in comparable cases. … CSP, as revealed by those comparable cases concerned with the relevant category of seriousness of the offence … will generally inform the range of sentences that are reasonably open to the sentencing judge. Hence, appellate courts, including the High Court, may seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of the offence. Hayne J described this range as the “permissible range of dispositions” in A B v The Queen. There may also be a further narrowing of the range by asking whether the offence falls towards the lowest end, the middle or the upper end of that applicable range. Such focus upon the relevant range of sentences, or in times gone by, to the “tariff” or “going rate”, provides guidance as to an indicative range for the category of seriousness of the subject offence and implies that the range is not unlimited.398

In DPP v CPD399 the court stated: “The identification of current sentencing practices for an offence will usually require consideration both of relevant sentencing statistics for the offence and of sentencing decisions in comparable cases.”400 There are however limits to the usefulness of sentences in past cases. In Hili v The Queen,401 a plurality of the High Court cautioned against an over-reliance on past cases and use of statistics: Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax 394 Based on the concepts of “equal justice” and “equality before the law” which are themselves part of the rule of law (Ashdown v The Queen (2011) 37 VR 341; [2011] VSCA 408 at [5] per Maxwell P). For discussion of these concepts see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 535 (CLR); Green v The Queen (2011) 244 CLR 462, 472-3; [2011] HCA 49 [28]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 608 [65] and Nguyen v The Queen [2016] VSCA 198 at [65]-[74] per Redlich JA. 395 Ashdown v The Queen (2011) 37 VR 341; [2011] VSCA 408 at [41]. 396 Ashdown v The Queen (2011) 37 VR 341; [2011] VSCA 408. 397 Ashdown v The Queen (2011) 37 VR 341; [2011] VSCA 408 at [178]. In Ashdown the Court of Appeal held that the case was not appropriate for the Court to express a view on CSP (for causing serious injury recklessly). 398 Ashdown v The Queen (2011) 37 VR 341; [2011] VSCA 408 at [178] per Redlich J. This dicta approved of in Anderson v The Queen [2013] VSCA 138 at [174], [191]. 399 DPP v CPD [2009] VSCA 114; (2009) 22 VR 533. 400 DPP v CPD [2009] VSCA 114; (2009) 22 VR 533 at [77]-[78]. 401 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45.

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evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken however, in using what has been done in other cases. In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As Her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper or lower limits. As Her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not “fix the boundaries within which future judges must, or even ought, to sentence.” Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ′unifying principles’ may be discerned”.402

The method of comparing an instance case with cases described as “worst category” is problematic. In Likiardopoulos v The Queen403 the court criticised the use of “worst category” cases as a starting point to compare those cases with the particular case. This is because comparable cases are at best a general guide, and a particular sentence is the result of the exercise of judicial discretion. In Barbaro v The Queen404 the High Court held that the practice of the prosecutor providing submissions to the court on sentencing range was wrong in principle and ought not to continue. Great care needs to be exercised when comparing sentences handed down in similar cases in other jurisdictions.405 However, in R v Pham,406 the High Court stated that in the case of federal offences: As Hili v The Queen made clear, where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.407

402 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54]. Also see Russell v The Queen (2011) 212 A Crim R 57 and Hudson v The Queen [2010] VSCA 332 at [31]-[32]. 403 Likiardopoulos v The Queen [2010] VSCA 344 at [172]. Also see Hudson [2010] VSCA 332 at [38]-[39] and Robbins [2012] VSCA 34. 404 Barbaro v The Queen (2014) 88 ALJR 372. 405 R v Nguyen [1997] 1 VR 386, 389 (tax evasion). 406 R v Pham (2015) 325 ALR 400; [2015] HCA 39. 407 R v Pham (2015) 325 ALR 400; [2015] HCA 39 [18].

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Where an offender is being sentenced for offences committed many years ago, the concept of “current sentencing practices” can be problematic. In Stalio v The Queen408 the applicant was sentenced for offences committed between 1974-1983: The applicant fell to be sentenced in accordance with the Sentencing Act but in respect of offences for which, at the date of offending, the maximum sentence of imprisonment applicable was materially less than would now be the case.409

The court referred to s 114 of the Sentencing Act 1991 which provides that if an Act increases the maximum penalty for an offence then the new maximum only applies to offences committed after the commencement of the new maximum. The court also noted s 27(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) states “A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.” The maximum penalty that applied in this case was thus the maximum sentence applicable at the time of the offending. The court stated that CSP in s 5(2)(b) of the Sentencing Act 1991 relates to present sentencing practices not sentencing practices at the time of the offending.410 However, the court noted that sentencing practices at the time of the offences are not necessarily irrelevant: We accept that in principle, it may be relevant to consider sentencing practice at the date of an offence when sentencing for that offence many years later. This is not because “current sentencing practices” referred to in s 5(2)(b) of the Sentencing Act relates to practices at the date of the offence, but because this factor is relevant to attainment of the purposes set out in s 5(1) and in particular, the imposition of punishment to the extent which is just in all the circumstances.411

Uplifting CSP [6.845] A court of appeal can also play a role in responding to submissions that CSP for particular offences are inadequate (for example, having regard to the objective seriousness of the particular offence or having regard to the prescribed statutory maximum sentence). It can be appropriate for an appellate court to intervene by stating that CSP for a particular offence (or category of offender) are inadequate, and directing sentencing courts that current sentences for the particular offence be gradually increased. This is referred to as CSP being “uplifted”. The jurisdiction of a court of appeal to express a view on the adequacy of CSP is based on the functions of an intermediate appellate court to establish

408 Stalio v The Queen (2012) 223 A Crim R 261; [2012] VSCA 120. 409 Stalio v The Queen (2012) 223 A Crim R 261; [2012] VSCA 120 at [47]. 410 Stalio v The Queen (2012) 223 A Crim R 261; [2012] VSCA 120 at [11], [78]. 411 Stalio v The Queen (2012) 223 A Crim R 261; [2012] VSCA 120 at [52].

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matters of principle “for the governance and guidance of courts having the duty of sentencing convicted persons”.412 The usual practice is that the Director of Public Prosecutions will submit to the Court of Appeal that CSP for a particular offence are inadequate and that the appeal in question is an appropriate case for the Court of Appeal to consider this issue. The Court of Appeal can then invite the Law Institute of Victoria and the Victorian Bar Association to make submissions on the appeal as intervenors in the matter.413 In Ashdown v The Queen414 Redlich JA set out a non-exhaustive list of circumstances in which “an intermediate court of appeal, exercising its jurisdiction to review a sentence and governed by established principles, is at liberty to propose that CSP should be uplifted.” In summary, these circumstances are: • where there has been an increase in the statutory maximum sentence and CSP fails to reflect that increase;415 • where there is evidence that an offence has become more prevalent;416 • where community expectations have altered;417 • where there has been increased community disquiet over the offence;418 • where there has emerged an increased understanding of the effects of the offence on victims;419 • where there has been a persistent error in the manner in which a category of offenders has been treated; and • where the objective seriousness of particular conduct has been wrongly categorised or a particular type of sentence is ordinarily not appropriate.420 In Hogarth v The Queen,421 for example, the Court of Appeal accepted that CSP in respect to the offence of confrontational aggravated burglary do not reflect: the objective seriousness of this form of the offence. The clustering of sentences around a medium of two years shows how far current sentencing has departed 412 Nguyen v The Queen [2016] VSCA 198 at [103] Redlich JA referring to inter alia Griffiths v The Queen (1977) 137 CLR 293 at 310. In Nguyen Tate JA provides detailed analysis of the jurisdiction of intermediate State appeal courts to express a view on CSP [156]ff. 413 See for example Nguyen v The Queen [2016] VSCA 198 at [94]. 414 Ashdown v The Queen (2011) 37 VR 341; [2011] VSCA 408 at [180]. 415 See for example Harrison v The Queen (2015) 74 MVR 58 and Muldrock v The Queen (2011) 244 CLR 120 at 133. 416 See for example R v Downie [1998] 2 VR 517 at 520. 417 See for example R v MJR (2002) 54 NSWLR 368 at 377. 418 See for example R v Vaitos (1981) 4 A Crim R 238. 419 See for example R v D (1997) 69 SASR 413 at 421. 420 See for example, Police (SA) v Cadd (1977) 69 SASR 150 approved in Wong v The Queen (2001) 207 CLR 584; and Winch v The Queen [2010] VSCA 141. 421 Hogarth v The Queen (2012) 37 VR 658; [2012] VSCA 302 at [58].

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from the parameters set by the maximum penalty of 25 years. … It follows, in our view, that current sentencing for this form of aggravated burglary can no longer be treated as a reliable guide, and sentencing judges should no longer regard themselves as constrained by existing practices.422

(In Hogarth the statutory maximum sentence had been increased from 15 years to 25 years imprisonment.) In Nguyen v The Queen423 the Court of Appeal stated that CSP for the mid category of seriousness of “cultivating a commercial quantity of cannabis” was inadequate and that some guidance for sentencing in these cases is urgently needed. Redlich JA stated (Tate JA and Whelan JA agreeing): “For the immediate future, sentencing courts must, by increments, increase the sentences for mid category offending so that the range of sentences is uplifted and substantially expanded.”424 In Harrison & Rigogiannis v The Queen425 the Court of Appeal concluded that CSP for the offence of negligently causing serious injury was inadequate and needs to be uplifted. In DPP v Dalgliesh (A pseudonym)426 the Court of Appeal concluded that CSP for the offence of incest are inadequate and “[w]e have concluded that sentencing courts must, by increments, increase the sentences for mid-range incest offences, so that the range of sentences is uplifted and substantially expanded.”427 In Winch v The Queen428 the Court of Appeal concluded that when sentencing an offender for the offence of “glassing” (recklessly causing serious injury), previous cases where a suspended sentence of imprisonment was imposed, should not normally be followed and that ordinarily, an immediate term of imprisonment should be expected. A court of appeal can express a view on the adequacy of CSP without being determinative of the appeal. The court could thus dismiss the appeal but still express a view on the CSP.429

422 Hogarth v The Queen [2012] VSCA 302 at [62]. Also see DPP v El-Hajje [2009] VSCA 160 (aggravated burglary) and Winch v The Queen (2010) 27 VR 658 (“glassing”). For an example of the application of sentences in previous cases of intentionally causing serious injury see Nash v The Queen [2013] VSCA 172 at [6]-[19] per Maxwell P. 423 Nguyen v The Queen [2016] VSCA 198 at [138]. 424 Nguyen v The Queen [2016] VSCA 198 at [152] and [157] per Tate JA and [230] per Whelan JA. 425 Harrison & Rigogiannis v The Queen [2015] VSCA 349. 426 DPP v Dalgliesh (a pseudonym) [2016] VSCA 148. 427 DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 at [131]. 428 Winch v The Queen (2010) 27 VR 658; [2010] VSCA 141 at [55]. Also see Daing v The Queen [2016] VSCA 58 at [47]. 429 Nguyen v The Queen [2016] VSCA 198 at [97], [101].

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A court of appeal can express a view on CSP on either a Crown appeal against sentence or an offender appeal against sentence.430 Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.790]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [6.235]. Judicial College of Victoria, Sentencing Manual (2016) at [6.4] and [8.3]. Totality [6.850] Where an offender is being sentenced for multiple offences, the principle of totality requires that the total overall sentence (or total effective sentence) is a “just and appropriate measure of the total criminality involved”.431 The way in which the principle is generally adhered to is by way of orders for concurrency between individual sentences. Complaints made on appeal about orders for cumulation can often merge with the question of whether the totality principle has been breached.432 In Mill v The Queen,433 the High Court quoted D A Thomas:434 The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principal has been stated many times in different forms: “When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total you see whether it is wrong”; “when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.

The totality principle can thus be breached where the judge is sentencing the offender for multiple offences and fails to make adequate allowance (in the aggregate or total effective sentence) for the overall criminality of the offender. The way in which orders for concurrency and cumulation 430 Nguyen v The Queen [2016] VSCA 198 at [102]; Poyner v The Queen (1986) 66 ALR 264. 431 Postiglione v The Queen (1997) 189 CLR 295 at 307–308; DPP v Oksuz [2015] VSCA 316; Hudson v The Queen (2010) 30 VR 610 at 625 [59] and Cotton v The Queen [2015] VSCA 103 at [71]. 432 Williams v The Queen [2013] VSCA 120 at [15]. 433 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. 434 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at [8], quoting D A Thomas, Principles of Sentencing (2nd ed, Heinemann, London, 1979) pp 56–57.

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are made is thus critical to the totality principle not being breached. The principle should be applied to the fixing of the head sentence and to the non-parole period, including where the offender is sentenced whilst serving a term of imprisonment for other offences.435 In Azzopardi v The Queen,436 the court stated: Sometimes it is described as a requirement that the sentence be commensurate with the gravity of the whole of the offending and the offender’s just deserts.437 … The rationale underlying the principle is that a “just measure” of an offender’s total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct.438 … Accordingly, the principle requires the sentencing judge to determine an aggregate sentence that ensures that all recognised sentencing objectives will be sufficiently achieved, leaving no purpose in requiring the person to serve the balance of each individual sentence. The sentence is thus structured so that those additional portions of each individual sentence are served concurrently.439

In Azzopardi the court concluded that the trial judge had breached the principle of totality: It was not reasonably open to the sentencing judge, in my respectful view, to impose the aggregate sentences or non parole periods that he did. I would uphold the contention in the case of all applicants that the principle of totality has been infringed as the total effective sentences imposed on each applicant exceeded that which was necessary to achieve all sentencing purposes. Their total effective sentences were disproportionate to their overall criminality.440

Crushing sentence [6.860] A sentence is said to be crushing “when it is of such length that it would provoke a feeling of helplessness in the applicant if and when he or she was released, or which would result in ‘the destruction of any reasonable expectation of useful life after release’.”441 A crushing sentence is not the same as a sentence which infringes the totality principle: Whether a sentence offends the principle of totality is directed towards the broader question whether the total sentence is proportionate to the offender’s overall criminality. It is not dependent upon the subjective views of the 435 Mill v The Queen (1988) 166 CLR 59, 65-67; [1988] HCA 70. 436 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372. 437 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 at [57]. 438 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 at [61]. 439 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 at [68]. 440 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 at [76]. 441 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 at [69], referring to Postiglione v The Queen (1997) 189 CLR 295 at 304; Jarvis v The Queen (1993) 20 WAR 201 at 205; R v Franklin [2009] MVR 544 {2009] VSCA 77, and R v Yates [1985] VR 41.

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offender. Thus a sentence may offend the totality principle without being “crushing”. It may be too long without destroying any reasonable expectation of a useful life after release. On the other hand a crushing sentence may not necessarily offend the totality principle though it may provide an indicator that it has infringed the principle.442

Further sources A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [3.75]. Judicial College of Victoria, Sentencing Manual (2016) at [6.4] and [6.6]. Double punishment [6.870] The general common law principle is that it is impermissible for an offender to be punished twice for the same act.443 In Pearce v The Queen,444 the High Court stated: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.445

Section 51(1) of the Interpretation of Legislation Act 1984 (Vic) also states: Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.

The Victorian Charter s 26 states “A person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.” In Lecornu v The Queen,446 the applicant was charged with breach of an extended supervision order (ESO) and with being in possession of child pornography. The breach offence was constituted by the possession of child pornography. On appeal against conviction and sentence, the applicant argued that he was punished twice for in effect the same act – that is, possessing the child pornography. In a comprehensive analysis of 442 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 at [69]. 443 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at 624 (CLR); R v Orgill [2007] VSCA 236 at [17]; Johnson v The Queen (2004) 205 ALR 34; R v Langdon (2004) 11 VR 18; DPP v McMaster (2008) 19 VR 191. 444 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. 445 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40]. 446 Lecornu v The Queen (2012) 222 A Crim R 73.

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the rule against double punishment, Maxwell P held that the principle of double punishment had not been breached because: The offences were different in important respects and it was appropriate to proceed to conviction on charges which, together, reflected the full criminality of L’s conduct. … L does not dispute that, in sentencing him on the CP offences, the sentencing judge was entitled to treat as an aggravating feature of those offences the fact that he had committed them while subject to the ESO. Having done so, her Honour was also entitled to impose sentences for the corresponding breach offences – but only for the separate criminality constituted by L’s disobedience of a Court order. Had the sentences on the breach counts also punished L (to any extent) for the criminality involved in his acts of possessing child pornography, the rule against double punishment would have been infringed.447

Through orders for part-cumulation, the sentencing judge was able to “separate out” the criminality for the breach offences from the possession of child pornography offences. An example where the rule against double punishment was breached is Azzopardi v The Queen,448 where the trial judge imposed sentences for the offence of armed robbery: [B]ut on all but one of the occasions that armed robbery sentence was increased beyond three years, a separate count of either intentionally causing serious injury, intentionally causing injury or common law assault had also been charged which was the subject of a separate sentence. … The Crown therefore conceded that the applicants should be re-sentenced on those counts because the same act founded the separate counts of intentionally causing serious injury, intentionally causing injury or common law assault, and the increased sentences for armed robbery.449

In Lipp v The Queen,450 the appellant had been convicted of being in possession of a substance with the intention of using the substance to traffic in a drug of dependence (Drugs Poisons and Controlled Substances Act 1981 (Vic) s 71A) and also convicted of being in possession of a prescribed precursor chemical: Drugs Poisons and Controlled Substances Act 1981 (Vic) s 71D. The appellant received separate sentences for each offence but the sentences were made concurrent. The Court of Appeal held there had not been a breach of the double punishment principle because the two offences were separate and were constituted by different elements.451 However, the court stated: Where the prosecution seeks to rely upon the possession the subject of a s 71D charge as evidence in support of a s 71A charge, there may be cases where, by 447 Lecornu v The Queen (2012) 222 A Crim R 73 at 76 [8]–[10]. 448 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372. 449 Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 at [26]–[27]. 450 Lipp v The Queen [2013] VSCA 384. 451 Lipp v The Queen [2013] VSCA 384 at [29].

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reason of fairness, a verdict on the s 71D charge should not be taken, and if it has been, that the conviction be set aside.452

In Nguyen v The Queen,453 the appellant was convicted of four charges of cultivating a narcotic plant, one charge of trafficking a drug of dependence and four charges of theft of electricity. Separate sentences were imposed for each offence and orders for part-cumulation were made. On appeal, the appellant argued that all the charges were part of the one enterprise and that, in particular, the theft charge was part of the cultivation charge, and hence the cumulated sentences involved an element of double punishment. The Court of Appeal held that all the offences were separate, and the theft charges added to the seriousness of the other charges. The orders for cumulation were appropriate.454 Further sources A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [2.325]. Judicial College of Victoria, Sentencing Manual (2016) at [6.5]. Order of serving sentences [6.880] Where a person receives a number of sentences of imprisonment (at the one time or at different times), some of which have a non-parole period fixed, it is important that the order of service of the sentences be clear. Section 14 of the Sentencing Act 1991 (Vic) provides: (1) If – (a) a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and (b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period – the court must fix a new non-parole period in respect of all the sentences the offender is to serve or complete. (2) The new single non-parole period fixed at the time of the imposition of the further sentence – (a) supersedes any pervious non-parole period that the offender is to serve or complete; and (b) must not be such as render the offender eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed. 452 Lipp v The Queen [2013] VSCA 384 at [30]. 453 Nguyen v The Queen [2013] VSCA 63. 454 Nguyen v The Queen [2013] VSCA 63 at [30]; see also see R v Bekhazi (2001) 3 VR 321.

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Through this mechanism the non-parole period can be clearly ascertained at all times. Note that under s 14(2)(b) a court is prevented from controverting a non-parole period that had been set by a previous court. Section 15 of the Sentencing Act 1991 then sets out the order in which sentences should be served: (1) If an offender has been sentenced to several terms of imprisonment in respect of any of which a non-parole period was fixed, the offender must serve – (a) firstly, any term or terms of imprisonment of which a non-parole period was not fixed; (b) secondly, the non-parole period; (c) thirdly, unless and until released on parole, the balance of the term or terms after the end of the non-parole period. (2) If during the service of a sentence a further sentence is imposed, service of the first-mentioned sentence must, if necessary, be suspended in order that the sentences may be served in the order referred to in subsection (1).

The Sentencing Act 1991 (Vic) s 16(4) states: A court that imposes a term of imprisonment for an offence against the law of Victoria on a person already undergoing a sentence or sentences of imprisonment for an offence against the law of the Commonwealth must direct when the new term commences which must be no later than immediately after – (a) the completion of that sentence or those sentences if a non-prole period or pre-release period (as defined in Part 1B of the Crimes Act 1914 of the Commonwealth) was not fixed in respect of it or them; or (b) the end of that period if one was fixed.

Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1750]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [13.125]. Time reckoned as served [6.890]

Under the Sentencing Act 1991 (Vic) s 18(1):

If an offender is in respect of an offence sentenced to a term of imprisonment or to a period of detention in an approved mental health service under a hospital security order, any period during which he or she was held in custody in relation to – (a) proceedings for the offence; or (b) proceedings arising from those proceedings including any period pending the determination of an appeal – must be reckoned as a period of imprisonment or detention already served under the sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders.

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(Section 18(1) does not apply to a period of custody of less than one day or to a sentence of imprisonment of less than one day, or to a period of custody already reckoned as served.)455 Section 18 thus applies where, for example, an offender has been remanded in custody, pending sentence. Section 18 is limited to cases where the pre-sentence detention is directly or indirectly connected to the matters the offender is being sentenced for: “[I]t is clear from the current terms of s 18(1) that it only encompasses pre-sentence detention that is referable, at least, to the offences for which the offender is being sentenced”.456 “Renzella” time [6.900] Where the pre-sentence detention does not come within s 18, because, for example the detention is for an unrelated matter, then the applicable principles become more complex. In R v Renzella,457 the Court of Appeal held that it has a common law discretion to give some allowance for pre-sentence detention where the offender’s pre-sentence detention is for a different matter as well as for the offence the offender is being sentenced for – that is, where the detention is “warranted twice over”.458 In Renzella the offender was being sentenced for conspiracy and had been in custody awaiting trial for the conspiracy charge as well as for unrelated matters. The then s 18 of the Sentencing Act 1991 did not apply because the pre-sentence detention must have been only in respect of the instant offence “and for no other reason”. The court held that s 18 was silent in respect to situations not covered by the terms of s 18 and where the detention was warranted “twice over”: “[A] court is not only empowered but obliged as a matter of justice to take pre-sentence detention into account”.459 The court stated: Presentence detention to which s 18 does not apply is to be taken into account in the exercise of the court’s discretion. It should ordinarily be taken into account at the first opportunity, as it was in Heaney’s case, and not left to the court imposing a later sentence.460

It is important to note that in Renzella the appellant had been in pre-sentence detention for both the instant offence (conspiracy) and for unrelated matters. 455 Sentencing Act 1991 (Vic) s 18(2)(a), (b) and (d). 456 Karpinski v The Queen (2011) 32 VR 85; [2011] VSCA 94 at [36]. 457 R v Renzella [1997] 2 VR 88. 458 R v Renzella [1997] 2 VR 88 at 98. 459 R v Renzella [1997] 2 VR 88 at 98. 460 R v Renzella [1997] 2 VR 88 at 98. In Renzella the appellant’s appeal against conviction was upheld and the court’s comments regarding pre-sentence detention were per curiam.

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In Karpinski v The Queen,461 Weinberg J expressed some concern as to how the principle in Renzella had been applied subsequently: Since Renzella, there has been a steady growth in reliance upon so-called “dead time” as a mitigating factor. In my view, however, Renzella “dead time” is often now invoked in circumstances where its application is difficult to justify, either as a matter of logic, or in principle.462

In Karpinski the appellant was sentenced on one charge of theft and one charge of armed robbery. The judge declared that 686 days of the sentence had been served by way of pre-sentence detention.463 The appellant had earlier been charged with attempted murder and had been detained in custody (for about eight months) pending trial for that offence. When sentencing the appellant, the trial judge made no reference to the time served in respect to the attempted murder. After the appellant was sentenced for the thefts and armed robbery, the DPP subsequently discontinued the prosecution for the attempted murder. The issue for the Court of Appeal was whether the trial judge should have credited the appellant with the time he had served awaiting trial for the attempted murder, notwithstanding that it was a totally unrelated matter to the instant offences. The specific question for the Court of Appeal was whether: The “dead time” (roughly, the period of detention for which the appellant would not otherwise receive any discount in sentencing) now stands to be taken into account, in a broad sense, under the discretion recognised in R v Renzella, or not at all.464

The court held that the eight months spent in detention for the attempted murder was: a relevant consideration to be taken into account in the determination of an appropriate sentence for the offending on the counts of theft of a motor vehicle and armed robbery. Given the entering of the nolle prosequi on the charge to which the eight month period on remand related, that was “a period which, viewed with the benefit of hindsight at the date of sentencing, should not have been served”.465

However, at the time of sentencing at first instance, the prosecution for the attempted murder remained alive. The appellant thus invited the Court of Appeal to resentence him: not on the basis that the sentencing judge had fallen into error, but rather on the ground that the sentencing discretion should be re-opened by reason of the 461 Karpinski v The Queen (2011) 32 VR 85; [2011] VSCA 94. 462 Karpinski v The Queen (2011) 32 VR 85; [2011] VSCA 94 at [5]. 463 Karpinski v The Queen (2011) 32 VR 85; [2011] VSCA 94. 464 Karpinski v The Queen (2011) 32 VR 85; [2011] VSCA 94 at [26]. “Dead time” refers to time spent in custody in relation to matters which the appellant is subsequently acquitted of or in relation to which the sentence was reduced: Warwick v The Queen [2010] VSCA 166 at [8]. 465 Karpinski v The Queen (2011) 32 VR 85; [2011] VSCA 94 at [65].

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“fresh evidence” now before this Court, namely, that after he had been sentenced the Crown entered a nolle prosequi on the charge of attempted murder.466

On the appeal, the Crown argued the trial judge had fallen into specific error, under the Renzella principle, by not taking into account the eight-month detention for the attempted murder. The Crown argued there must be a single “anchor point”. The Court of Appeal accepted this argument of the Crown: “It was rather simply a matter of ensuring that, at the first opportunity, all unallocated pre-sentence detention is taken into account in the exercise of the sentencing discretion.”467 The court then re-sentenced the appellant by reducing the total effective sentence and the non-parole period by four months. Further sources Justice Phillip P riest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1740] and [3.1.1780]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [13.145]. Judicial College of Victoria, Sentencing Manual (2016) at [5.6.4]. Cumulation and concurrency [6.910] Where a person has been sentenced for multiple offences, the individual sentences for each offence may be appropriate but, through orders for concurrency and cumulation, the total effective sentence or the non-parole period may be inappropriate and hence the subject of an appeal. At common law there is a presumption that all sentences of imprisonment are to be served concurrently.468 The Sentencing Act 1991 (Vic) s 16(1) provides: Subject to subsection (1A), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment or detention in a youth justice centre or youth residential centre imposed on that person, whether before or at the same time as that term.

There is thus a clear statutory presumption of concurrency, but the court has a discretion to not order concurrency. In R v Mantini,469 the court stated that there was a prima facie rule that every sentence should be concurrent unless there is good reason for departing from the rule. 466 Karpinski v The Queen (2011) 32 VR 85; [2011] VSCA 94 at [67]. 467 Karpinski v The Queen (2011) 32 VR 85; [2011] VSCA 94 at [70]. 468 A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) p 780. 469 R v Mantini [1998] 3 VR 340.

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The Sentencing Act 1991 (Vic) s 16(1A) does, however, provide for a number of exceptions to the presumption of concurrency. Where a sentence of imprisonment is imposed for default of paying a fine, a prison offence, an escape offence, or imposed on a serious offender for a relevant offence or on a person who has committed the offence whilst on parole, or for offences committed whilst on bail, then the presumption of concurrency in s 16(1) does not apply. Section 16 provides for sentences to be served cumulatively as follows: • For fine default, the sentence must “unless otherwise directed by the court” be served cumulatively with any other uncompleted sentence imposed for default of payment of a fine or sum of money.470 • For prison and escape offences, the sentence of imprisonment must “unless otherwise directed by the court” be served cumulatively on any uncompleted sentence.471 • For offences committed whilst the person was on parole, the sentence must be cumulative “unless otherwise directed by the court”.472 • For offences committed whilst the offender was on bail, the sentence must “unless otherwise directed by the court” be served cumulatively.473 • For serious offenders (as defined in the Sentencing Act 1991), the sentence of imprisonment must “unless otherwise directed by the court” be served cumulatively.474 The courts have been reluctant to lay down strict rules regarding when it is appropriate to order concurrency and cumulation.475 Much depends on the nature of the multiple charges and the interrelationship between the different offences. In Attorney-General (SA) v Tichy,476 the court stated that: what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct.477 470 Sentencing Act 1991 (Vic) s 16(2). 471 Sentencing Act 1991 (Vic) s 16(3). 472 Sentencing Act 1991 (Vic) s 16(3B). Sentencing courts need to take care to ensure submissions regarding whether an offender was or was not on parole at the time of the offence, are accurate: DPP v Oksuz [2015] VSCA 316 at [136]. 473 Sentencing Act 1991 (Vic) s 16(3C). 474 Sentencing Act 1991 (Vic) s 6E. For discussion, see A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [13.30]. 475 Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92. 476 Attorney-General (SA) v Tichy (1982) 30 SASR 84. 477 Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92.

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Concurrency is in general appropriate where all the charges arise out of the one single incident or event. According to Freiberg: In Victoria the presumption of concurrency will generally prevail where more than one offence arising out of the same facts or a connected series of facts is charged on the same indictment so that the crimes can be said to be part of one continuing episode.478

Cumulation is normally appropriate where: the separate sentences of imprisonment (whether arising out of multiple counts in the one presentment or, more likely, a number of different presentments) can be seen as truly two or more separate incursions into criminal conduct.479 [I]f a single incident of bad driving leads to a charge of culpable driving causing death to one person and negligently causing serious injury to another, there is no principle that cumulation cannot be supported when there are two consequences of a single event.480

If cumulation is to be ordered, the judge should use the sentence for the most serious offence as the “base” sentence.481 It is wrong for a sentencing judge to impose manifestly excessive sentences for individual counts and permit total concurrency to arrive at an appropriate head sentence. Proper sentences should be imposed for each count and orders for partial cumulation made to arrive at a just result.482 Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1760]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [13.05]–[13.75]. Judicial College of Victoria, Sentencing Manual (2016) at [5.6.2], [6.5.1] and [12.5]. Parsimony [6.920] The principle of parsimony requires that the sentencer should select the least punitive sentence required to achieve the particular sentencing purpose.483 All the available sentencing options in the Sentencing Act 1991 (Vic) exist in a hierarchy with imprisonment at the top and dismissal (s 76) at the bottom. Section 5(3) of the Sentencing Act 1991 478 A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) p 789, quoting Dicker v Ashton (1974) 65 LSJS 150 at 151. 479 A Freiberg A, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) p 792. 480 P Priest, “Sentencing” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1760]. 481 R v Musson [1997] 1 VR 656 at 660. 482 R v Lomex [1998] 1 VR 551; R v Hogan [2008] VSCA 279 at [27]. 483 R v Milne (Andrew James) (1982) 4 Cr App R (S) 397.

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(Vic) states: “A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.” Section 5(4) – (7) then provide that the court should not impose a particular sentence unless satisfied that the sentence immediately below it could not achieve the same purpose. The effect of these provisions is to force the sentencer to carefully consider whether any particular sentence may be too severe. Further sources A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [3.90]. Judicial College of Victoria, Sentencing Manual (2016) at [6.3]. Non-parole period [6.930] Where an offender receives a term of imprisonment, it is usually imposed (or expressed) as the maximum period that the offence deserves and the maximum period that the offender could serve in prison. Depending on the length of the sentence of imprisonment, the court may also set a non-parole period. The non-parole period (or “minimum term”) is the length of time the offender must spend in prison before being eligible for parole.484 The purpose of a non-parole period is: to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, where appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to the circumstances of his offence.485

Under the Sentencing Act 1991 (Vic) s 11(1), where a person has been sentenced to a term of imprisonment for life or for two years or more, the court must set a non-parole period unless the court thinks the setting of a non-parole period is not justified having regard to the seriousness of the offence or the past history of the offender.486 Where an offender has been sentenced to between 12 months and two years’ imprisonment, the court has a discretion whether to set a non-parole period or not. If the sentence is less than 12 months’ imprisonment, a non-parole period will not be set. If a non-parole period is set, it must be at least six months less than the maximum sentence: Sentencing Act 1991 (Vic) s 11(3). Thus, it can be seen that, given these parameters, there is scope for grounds of an appeal based on the non-parole period. 484 For discussion on how a court determines the non-parole period, see Kumova v The Queen (2012) 37 VR 538; [2012] VSCA 212. 485 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 629 (CLR). Also see Bugmy v The Queen (1990) 169 CLR 525 at 536. 486 It is only in exceptional circumstances that a non-parole period would not be set where the maximum sentence is life or two years or more. There are, however, a number of cases where the offender has been sentenced to life imprisonment and a non-parole period has not been set. For discussion, see Hunter v The Queen (2013) 40 VR 660; [2013] VSCA 385.

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A failure to give reasons for the non-parole period does not inevitably betoken error but the failure invites scrutiny if the non-parole period is unusual in comparison to other cases or having regard to the facts of the particular case.487 There is no “usual” non-parole period. A non-parole period that is 50 percent of the total effective sentence may be appropriate in the circumstances of some offences and offenders.488 Further sources P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 (Annotated) Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.1570]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [14.45]. Parity [6.940] The general principle is that there should be reasonable parity in the sentences imposed on co-offenders for the same crime, assuming there are no significant differences between the circumstances of the cooffenders and their role in the commission of the offence.489 Parity is an aspect of equality which in turn is part of the rule of law. Parity can operate as a powerful influence on the sentencing court and on an appellate court. Whilst one offender does not have to receive the identical sentence of their co-offender, there should not be any marked difference in the type of sentence or severity of sentence imposed – unless there are significant differences between the circumstances of each offender. Even if a particular sentence, when viewed in isolation, is unobjectionable, it may require appellate intervention based on the need for parity.490 Even if a co-offender has received an unduly lenient sentence, the sentencing judge must still take that unduly lenient sentence into account when sentencing the co-offender. A failure to do so can vitiate the sentence imposed.491 Thus, for reasons of parity, co-offenders should preferably be sentenced by the same judge. Clearly, there is considerable scope for the principle of parity to be used as a ground of appeal. Another aspect of parity is the principle that a sentence imposed for one particular offence and offender with particular circumstances, should, in general, be similar to what other people have 487 R v VZ (1998) 7 VR 693; [1998] VSCA 32 at 698 [13]. 488 DPP v Oksuz [2015] VSCA 316 at [157]. 489 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Teng v The Queen (2009) 22 VR 706; [2009] VSCA 148. 490 Joseph v The Queen [2014] VSCA 343 at [62]. 491 Taleb v The Queen (2014) 42 VR 666; [2014] VSCA 96 at [48]; Bernath v The Queen [2014] VSCA 195.

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received for the same offence in the same circumstances.492 In other words, a sentencing court should have regard to current sentencing practices to ensure that the particular sentence is not “way out of step” with sentences for similar circumstances. This also concerns equality in treatment. Parity also applies to Crown appeals where one co-offender has received a very lenient sentence.493 Further sources Judicial College of Victoria, Sentencing Manual (2016) at [6.7]. Mental state: Verdins [6.950] The mental state of an offender, either at the time of the offence or at the time of sentencing (or both), can operate as a mitigating factor and thus affect the sentence. The offender’s mental state can be relevant to the sentence in a number of ways. In R v Verdins,494 the Court of Appeal examined the relevance of the offender’s “impaired mental functioning, whether temporary or permanent” (“the condition”) and stated that the condition can be relevant to sentencing in the following six ways or circumstances (in summary): 1. The condition can reduce the moral culpability of the offender and thus reduce the need for punishment and denunciation. 2. The condition may affect the kind of sentence and the conditions attached to the sentence. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the condition, and the effect of the condition on the mental capacity of the offender. 4. Whether specific deterrence should be moderated or eliminated depends on the nature and severity of the condition, and the effect of the condition on the mental capacity of the offender. 5. The existence of the condition at the time of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person of normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will tend to mitigate punishment.495

492 See Zakaria v The Queen (1984) 12 A Crim R 386 at 388. 493 DPP (Cth) v Peng [2014] VSCA 128 at [38]. 494 R v Verdins (2007) 16 VR 269; [2007] VSCA 102. 495 R v Verdins (2007) 16 VR 269; [2007] VSCA 102 at [32].

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DPP v O’Neill [6.960] In DPP v O’Neill,496 the Court of Appeal reviewed the scope and application of the six principles in R v Verdins.497 The court noted that the judgment in Verdins does not contain one single overarching principle, but rather provides a compendious summary of a number of different propositions which may be relevant in a case where there was evidence as to the offender’s mental state.498 In summary, the key propositions from O’Neill are: • It is inappropriate to apply a mechanistic approach whereby, because an offender is said to suffer from impaired mental functioning, the offender thus attracts the Verdins principles. Such an approach is over-simplistic and erroneous.499 • The Verdins principles only apply where the offender is suffering from an impairment of mental functioning. The principles do not apply to personality disorders.500 • In order for the first, second, third and fourth principles to have any application to the sentencing task, “there must be a connection between the impairment of mental functioning and the appellant’s moral culpability or the need for general and specific deterrence”.501 • To show the necessary connection between the impaired mental functioning and the offending, so as to enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender’s ability to appreciate the wrongfulness of his or her conduct, or obscured the intention to commit the offence, or affected the ability of the offender to make calm and rational choices.502 • The fifth and sixth limbs of the Verdins principles may operate where the existing impairment will make prison more onerous or may exacerbate the condition if the expert evidence establishes the significance of the impairment to the prison sentence.503 • Cogent evidence, normally in the form of expert opinion evidence, is necessary to establish the existence of the mental impairment, and the nature, extent, and effect of the impairment as experienced by the offender at the time.504 496 DPP v O’Neill [2015] VSCA 325. 497 R v Verdins (2007) 16 VR 269; [2007] VSCA 102. 498 DPP v O’Neill [2015] VSCA 325 at [43]. 499 DPP v O’Neill [2015] VSCA 325 at [68]. 500 DPP v O’Neill [2015] VSCA 325 at [71], [85]. 501 DPP v O’Neill [2015] VSCA 325 at [74]. 502 DPP v O’Neill [2015] VSCA 325 at [75]. 503 DPP v O’Neill [2015] VSCA 325 at [76]. 504 DPP v O’Neill [2015] VSCA 325 at [77].

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• The assessment by the sentencing judge must be undertaken with rigour.505 • The Crown has an important role to play in identifying any inadequacy in the expert opinion evidence and should provide full assistance to the sentencing judge.506 • An existing mental impairment at the time of sentencing may require appropriate moderation of general deterrence if it is determined that the offender is not an appropriate vehicle for general deterrence.507 • A moderation of general deterrence will not ordinarily be required where the mental condition arises after the offence as a reaction to the discovery of the crime or the prospects of prison.508 • In the current case (O’Neill) the principles in Verdins do not apply. There was no evidence that the offender suffered from an impairment of mental functioning.509 • The offender’s “complex personality matrix” was not irrelevant to the sentencing synthesis as it helped explain why the offender lost control and killed the deceased. These explanations were relevant to his moral culpability.510 (Also see Wright v The Queen [2015] VSCA 333). Further sources A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [4.45]. Judicial College of Victoria, Sentencing Manual (2016) at [10.9].

Procedure on sentence appeals [6.970] The procedure for an appeal against sentence is, in general, the same as for an appeal against conviction (as outlined above at [6.350] and readers are referred to the flowchart at [6.360]). There are, however, a number of important differences between the procedure for a conviction appeal and the procedure for a sentence appeal. These differences are explained below. Central to the procedure for sentence appeals, and analogous to conviction appeals, is the requirement that the appellant first obtain leave of the Court of Appeal before the court will hear and determine the appeal. In brief summary, the Supreme Court (Criminal Procedure) Rules 2008 provide that a notice of application for leave must be filed (containing the 505 DPP v O’Neill [2015] VSCA 325 at [78]. 506 DPP v O’Neill [2015] VSCA 325 at [81]. 507 DPP v O’Neill [2015] VSCA 325 at [82]. 508 DPP v O’Neill [2015] VSCA 325 at [83]. 509 DPP v O’Neill [2015] VSCA 325 at [85]. 510 DPP v O’Neill [2015] VSCA 325 at [96]; see also Wright v The Queen [2015] VSCA 333.

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[6.980]

grounds of appeal) and accompanied by a written case. The Registrar obtains copies of the transcript and the respondent files a written case in response. The Registrar then refers the application for leave to appeal sentence to either a single Judge of Appeal or two or more Judges of Appeal, and the application for leave is determined with or without an oral hearing. Application for leave to appeal sentence [6.980] An application for leave to appeal sentence is commenced by filing a notice of application for leave to appeal sentence: Form 6-2B of the Supreme Court (Criminal Procedure) Rules 2008.511 The notice must be filed with the Registrar of Criminal Appeals within 28 days after the day on which the applicant is sentenced, unless the time for filing has been extended under s 313 of the CPA.512 The notice must state each ground of appeal specifically, and not merely in general terms. Where a ground such as “manifest excess” is relied on, the ground must be sufficiently particularised to identify the matters relied upon. The notice of application for leave must be accompanied by a “written case in support”.513 The notice must be signed by the applicant or a lawyer on behalf of the applicant and must set out particulars of the application. These include the applicant’s name, the sentences appealed, the trial judge, date of conviction and sentence. Although the Court of Appeal has made it clear that an application for leave will normally be determined “on the papers”, the notice of application for leave has provision for the applicant to request an oral hearing of the application. If the applicant does not specifically request an oral hearing, the application will be determined on the papers. The grounds of an appeal are not limited by any criteria in the CPA and can arise in a variety of circumstances. The ground can be based on a specific disclosed error or manifest excess. In drafting the grounds of an appeal, it is important to have regard to the grounds upon which the Court of Appeal can uphold an appeal against sentence under s 281 of the CPA (discussed at [6.630]). It is also important to be as specific as possible in framing the grounds.514 The advice and input of trial counsel is essential. 511 Supreme Court (Criminal Procedure) Rules 2008 r 2.05(2) and CPA s 279. 512 CPA s 279. Rule 1.07 sets out rules for calculating time. If time runs from a day or an event, then the day or event is excluded: r 1.07(2). If time is to end on a day or an event, the day or the day of the event is included: r 1.07(3). If the last day for doing an act is a day when the office is closed, the act may be done on the next day the office is open: r 1.07(5). 513 Supreme Court (Criminal Procedure) Rules 2008 r 2.05(4) and in accordance with any applicable Practice Direction. 514 Supreme Court Practice Direction No 2 of 2011 s 4.

[6.990]

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In deciding whether to commence an appeal, it is possible to obtain a recording of the relevant parts of the trial from the Victorian Government Reporting Service. Written case [6.990] The purpose of the written case is “to enable the Court to grasp the facts and issues in the case and to decide the application without oral argument, and it should be prepared accordingly”.515 The written case in support must set out the following (paraphrased): (a) the sentence from which leave to appeal is sought; (b) the applicable statutory maximum penalty and any other relevant statutory provisions in tabular format, an example of which is shown in Annexure 1 to the Supreme Court Practice Direction No 2 of 2011; (c) a summary of the relevant facts (or attach a summary of agreed facts if available); (d) the grounds of appeal, each of which: (i) must be numbered consecutively; (ii) must be sufficiently particularised to identify the matters relied on; (iii) in respect to complaints about the weight attributed to particular sentencing factors, these are to be treated as particulars of a ground of manifest excess, unless it is to be contended that a statement about weight made by the sentencing judge discloses a specific error in describing the facts or evaluating their significance, in which case the ground of appeal should be expressed accordingly;516 (e) a list of authorities (as shown in Annexure 2 of the Practice Direction No 2 of 2011); (f) a list of all material the applicant intends to rely upon; (g) the heading of each ground of appeal should: (i) outline concisely each argument to be advanced, including references to relevant authorities; (ii) identify by date and time each passage in the transcript considered necessary to be obtained; and (iii) identify any documents mentioned in the ground, by exhibit number: r 2.05(4). The written case must be concise and not exceed 10 pages of 12 point font.517 515 Supreme Court Practice Direction No 2 of 2011 s 4(4). 516 DPP (Vic) v Terrick (2009) 24 VR 457; Pesa v The Queen [2012] VSCA 109. 517 Supreme Court Practice Direction No 2 of 2011 s 4(6).

316

Criminal Appeals and Reviews in Victoria

[6.1000]

Counsel and solicitors must not sign a notice of appeal or a written case unless they consider “the grounds to be reasonably arguable and [they] would be prepared, if necessary, to argue them before the court”.518 Filing of documents and role of Registrar [6.1000] The notice of application for leave to appeal sentence, written case, and any accompanying documents are filed electronically with the Court of Appeal Registry: [email protected]. The Registrar then checks the application and accompanying documents, and can reject an application for leave to appeal if it does not conform to the rules.519 The Registrar obtains a copy of the relevant transcript and provides a copy to the parties. The applicant can then revise the written case in light of the transcript.520 Respondent’s documents [6.1010] It is the role of the Registrar to provide a copy of the notice of application to the respondent within seven days after the day the notice of application is filed.521 The Registrar will also provide a copy of the applicant’s written case if it has been accepted for filing. The Registrar will obtain a copy of the transcript of the addresses on the plea and of the judge’s sentencing remarks, and the transcript is provided to the parties in an unrevised form. It is unlikely that revision of the application for leave to appeal sentence or the written case will be required or permitted, but the Registrar may invite revision if he or she thinks it would assist the court.522 The Crown is no longer expected to make submissions or appear on every application for leave to appeal sentence.523 The court does, however, rely on the Crown to draw the court’s attention to any defects in the material filed by the applicant or where a point of law is disputed. In some cases the Registrar will require the Crown to respond to an application for leave. When the Crown responds to the application, it must file and serve a written case within 28 days from the day of being provided with a copy of the application.524 The Crown written case must respond point by point to each ground of the appeal and to each argument advanced in the applicant’s written case. The Crown written case must also comply with 518 Supreme Court Practice Direction No 2 of 2011 s 4(8). 519 Supreme Court Practice Direction No 2 of 2011 s 4(8); Supreme Court (Criminal Procedure) Rules 2008 r 2.13. 520 Supreme Court Practice Direction No 2 of 2011 s 7. 521 CPA ss 275(2) and 279(2): Supreme Court Practice Direction No 2 of 2011 s 5(4). 522 Supreme Court Practice Direction No 2 of 2011 s 7(4). 523 Supreme Court Practice Direction No 2 of 2011 s 8(2). 524 Supreme Court Practice Direction No 2 of 2011 s 8(5).

[6.1040]

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s 4 of the Practice Direction No 2 of 2011.525 Accordingly, the written case should not exceed 10 pages in length. Stay of sentence [6.1020] A sentence is not stayed just because a party has applied for leave to appeal or has filed a notice of appeal, unless the CPA otherwise provides.526 However, the trial judge can stay a sentence or, if the notice of appeal or application for leave to appeal has been filed, the Court of Appeal can order a stay of the sentence.527 If the County Court or the Supreme Court made an order under the Sentencing Act 1991 (Vic) s 84 (restitution), s 85B (compensation for pain and suffering), or s 86 (compensation for property loss), then those orders are stayed (unless the court otherwise directs). It is difficult to imagine in what circumstances the trial judge would order that these financial orders not be stayed.528 These types of financial orders are premised on the conviction, and thus the statutory stay is justified if the conviction is legitimately challenged. If the appeal against conviction is upheld, any orders made under the Sentencing Act 1991 (Vic) ss 84, 85B and 86 have no effect Applying for leave to appeal sentence out of time [6.1030] As discussed above (at [6.420]), the general principle is that in the absence of good reasons for the delay in filing the notice of application for leave, and merit in the proposed grounds, an extension of time will not be granted. The principles and practices set out above (at [6.430]) apply to applications for leave to appeal sentences. Referral of application [6.1040] When all the required documents have been filed, the Registrar refers the application for leave to appeal to either a single Judge of Appeal529 or to at least two Judges of Appeal530 for determination.531 The usual course is that the application is referred to a single judge but if the application raises a novel point of law, or an unlawful sentence has been passed and the applicant must be re-sentenced, the matter is likely to be referred to two or more Judges of Appeal.532 If the application is to be heard by two or more judges, it is expected that counsel will appear on the hearing. 525 Supreme Court Practice Direction No 2 of 2011 s 8(6). 526 CPA s 309(1). 527 CPA s 309(2). 528 If the trial judge did direct that one or more of these orders not be stayed, an appeal lies to the Court of Appeal against that decision: CPA s 311(4). 529 CPA s 315. 530 Pursuant to r 2.06 of the Supreme Court (Criminal Procedure) Rules 2008. 531 In deciding how to refer a case, the Registrar takes into account the complexity and seriousness of the matter and the need for “efficient and expeditious dispatch of applications”: Supreme Court Practice Direction No 2 of 2011 s 9(3). 532 Supreme Court Practice Direction No 2 of 2011 s 9(2).

318

Criminal Appeals and Reviews in Victoria

[6.1050]

The judge will determine the merits of the application on the written materials, assuming the applicant has not requested an oral hearing.533 If the matter is referred to a single Judge of Appeal and the judge dismisses the application, the applicant has a right to have the application reheard by two or more Judges of Appeal.534 The test on a leave application [6.1050] Unlike the test for determining leave to appeal a conviction, the test for leave to appeal sentence is in statute. In CPA s 280(1) the grounds for the Court of Appeal determining whether or not to grant leave to appeal are expressed in the negative. The Court of Appeal may refuse an application for leave to appeal (in relation to any ground of appeal) if: (a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or (b) there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.

It is important to note that under CPA s 280(1)(b) the court may be persuaded there is an error in the specific sentence under appeal, but still refuse leave to appeal if the court thinks the Court of Appeal would not reduce the total effective sentence. (The Court is however empowered to correct the individual sentence even if the total effective sentence is not affected.) Under the previous wording of CPA s 280(2) the court had to grant leave (if it was satisfied there was an error in the specific sentence) even if it thought the total effective sentence was perfectly acceptable.535 (The Victorian provision is unique in Australia. In the other jurisdictions, the test for leave to appeal a sentence varies. In most jurisdictions the test is whether there is a “sufficiently arguable case”,536 but in some jurisdictions the test involves determining the chances of the appeal succeeding – that is, of a lesser sentence being imposed.)537 Under CPA s 280(2) an application for leave can be refused even if the court considers there may be a reasonably arguable ground of appeal. The 533 Supreme Court (Criminal Procedure) Rules 2008 r 2.07(2); see also Supreme Court Practice Direction No 2 of 2011 s 11(1). 534 CPA s 315; Supreme Court (Criminal Procedure) Rules 2008 r 2.08. 535 Ludeman v The Queen (2010) 31 VR 606; [2010] VSCA 333. As a result of the ruling in Ludeman, the CPA s 280 was altered to its present form to enable an application for leave to appeal to be refused where the total effective sentence was considered to be unobjectionable. 536 For example, in New South Wales the test is “sufficiently arguable case”: Bailey v DPP (1988) 34 A Crim R 154 at 155. In the Northern Territory the test is “an arguable case”: McDonald v The Queen (1992) 85 NTR 1 at 5. In South Australia the test is “an arguable case”: R v O, B [2015] SASCFC 157 at [14]. 537 For example, in Western Australia the test is whether “the ground has a reasonable prospect of succeeding”: Criminal Appeals Act 2004 (WA) s 23. In Queensland the test is “real prospects of success”: R v Miller [2002] QCA 56.

[6.1055]

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issue is not so much whether there has been some sort of error in the sentence, but rather whether the Court of Appeal is likely to reduce the sentence that was imposed. The applicant must show there is a good argument that the sentence imposed was too severe and that a different sentence should be imposed. As a result of CPA s 280(1) and (2), an application for leave to appeal sentence appears to involve a two-step process. First, there must be a “reasonably arguable ground of appeal”. (If there is no reasonably arguable ground of appeal, leave cannot be granted.) However, this is a necessary, but not a sufficient, condition. The applicant must also demonstrate that (there is a reasonable prospect) the Court of Appeal would impose a less severe sentence. Under CPA s 280(3), if the Court of Appeal refuses an application for leave to appeal because there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence (under s 280(1)(b)), the Court of Appeal can nevertheless amend the sentence first imposed by substituting a lesser sentence and make any other order the court thinks appropriate.538 This limited power does not extend to amending the total effective sentence.539 (A single Judge of Appeal would not have power to correct a sentence under CPA s 280(3) as a single judge only has power to grant or refuse leave to appeal under CPA s 315(1)(a)). If an oral hearing is held, the time limit for the applicant is 15 minutes, and 10 minutes for the Crown.540 After reading the materials, the Appeal Judge has four options:541 • to grant leave to appeal (on all the grounds); • to grant leave to appeal on some grounds but refuse leave on others; • to refuse leave to appeal; or • to refer the case to two or more Judges of Appeal. Correcting technical errors in the sentence [6.1055] Under the Sentencing Act 1991 (Vic) s 104A(5A) in determining an application for leave to appeal against a judgment or sentence, the Court of Appeal may direct the amendment of the judgment or sentence if satisfied of the matters set out in s 104A(1)(a) or (b), regardless of whether leave is granted or refused. The matters set out in s 104A(1) are: (a) that it contains– (i) a clerical mistake; or (ii) an error arising from an accidental slip or omission; or 538 DPP v Oksuz [2015] VSCA 316 at [6] and Hudson v The Queen (2010) 30 VR 610; [2010] VSCA 322 at 626 (VR) [61]. 539 See Criminal Procedure Amendment Bill 2012 (Vic) Explanatory Memorandum cl 5; and the Second Reading Speech (21 June 2012) introducing this Bill. 540 Supreme Court Practice Direction No 2 of 2011 s 11(7). 541 Supreme Court (Criminal Procedure) Rules 2008 r 2.07(2).

320

Criminal Appeals and Reviews in Victoria

[6.1060]

(iii) a material miscalculation of figures or a material mistake in the description of any person, thing or matter or (iv) a defect of form; or (b) that it fails to deal with a matter that it would undoubtedly have dealt with in accordance with the amendment if the attention of the judge or magistrate had been directed to it.

Leave granted [6.1060] If leave to appeal is granted, or the case is referred to the Court of Appeal, the Registrar notifies the applicant (Form 6-2DA), and if leave to appeal is granted on some grounds or leave refused, the Registrar notifies the applicant: Form 6-2DB.542 If leave is granted, the notice of application for leave is treated as a notice of appeal.543 Leave refused [6.1070] Assuming that a single judge of the Court of Appeal has dismissed the application for leave to appeal on all grounds or on some grounds, the applicant can elect to renew the application before two or more Judges of Appeal.544 The applicant must complete Form 6-K and return it to the Registrar within 10 days.545 The Court of Appeal may consist of two judges who can grant leave to appeal, grant leave to appeal on some grounds, refuse leave to appeal, or refer the case to the Court of Appeal consisting of not fewer than three judges.546 It is expected that the renewed application will be determined on the papers, but the applicant can elect for an oral hearing: Form 6-2K. It is not expected that the Crown would appear on a renewal application. The Court of Appeal (including where the Court is constituted by two Judges of Appeal) can treat the hearing of the application for leave to appeal as the hearing of the appeal itself and the outcome of the appeal can be announced immediately.547 The Registrar notifies the applicant of the outcome of the application: Form 6-2DC.

Hearing of appeal [6.1080] The Registrar prepares a short summary. This summary assists the Court of Appeal in referring to the facts and issues in an efficient manner. The court refers to the summary as the “neutral summary”. The Registrar provides a copy of the summary to the parties prior to the appeal for any corrections. 542 Supreme Court (Criminal Procedure) Rules 2008 r 2.07(3). 543 Supreme Court (Criminal Procedure) Rules 2008 r 2.09.2. 544 CPA s 315(2); Supreme Court (Criminal Procedure) Rules 2008 r 2.08(2). 545 Supreme Court (Criminal Procedure) Rules 2008 r 2.08(2). 546 Supreme Court (Criminal Procedure) Rules 2008 r 2.08(3). 547 Supreme Court (Criminal Procedure) Rules 2008 r 2.09.1. See for example, McPhee v The Queen [2014] VSCA 156 at [2]. Two judges of Appeal may make any order incidental to the exercise by them of the powers of the Court of Appeal: Supreme Court (Criminal Procedure) Rules 2008 r 2.09.1.

[6.1090]

6 Appeal and other Applications from Trials on Indictment

321

At the start of the hearing, the case is called out and the applicant is identified. Counsel announce their appearances. Counsel for the Crown deals with any preliminary points. The report of the trial judge is then read. Counsel for the applicant makes submissions. Counsel for the DPP responds to the submissions. Counsel for the applicant responds if desired. Sometimes written submissions are sought. Finally, the court makes its decision. After hearing the appeal, the aim of the court is to deliver judgment shortly after oral arguments conclude.548 Admissibility of fresh evidence on offender appeal [6.1090] In some cases the appellant may wish to adduce evidence on an appeal which was not adduced at the sentencing hearing. This type of new evidence may relate, for example, to a change in the health of the offender since being sentenced, a change in the conditions of imprisonment, the health of a member of the offender’s family, a change in relevant statutory provisions,549 or post-sentence assistance the offender has provided. The concept of “fresh” evidence on a sentence appeal is somewhat different from “fresh” or “new” evidence on a conviction appeal because the former relates to events which have occurred after sentence whilst the latter can relate to facts and circumstances which existed at the time of conviction. Fresh evidence by itself is not a ground of appeal and the fresh evidence must relate to a specified ground of appeal. In general, courts of appeal are reluctant to admit fresh evidence in a sentence appeal. Having said this, there are numerous examples where the Victorian Court of Appeal has admitted fresh evidence on a sentence appeal and re-sentenced the offender.550 In R v Nguyen 551 Redlich JA set out the following principles which apply to the admissibility of fresh evidence (footnotes omitted): (i) the new evidence must relate to events which have occurred since the sentence was imposed; 548 Supreme Court Practice Direction No 2 of 2011 s 19(3). 549 Da Costa v The Queen [2016] VSCA 49 at [52]. 550 See for example Dong v DPP (Cth) [2016] VSCA 51 at [24], [27] (appellant pregnant); Hancock v The Queen [2013] VSCA 199 at [8] (appellant pregnant); Tscherepko v The Queen [2010] VSCA 299 at [22] (continuing protective custody); AWP v The Queen [2012] VSCA 41 at [47] (heart condition); R v Orbach [2007] VSCA 166 at [65] (deteriorating health); Spence v The Queen [2013] VSCA 197 at [25] (deteriorating health). 551 In R v WEF [1998] 2 VR 385 at 388 the court stated: “The circumstances in which this court will entertain new evidence relating to events which are alleged to have supervened after sentence are rare and exceptional … However this court has recognised that there is a rare exception to this otherwise fundamental rule. The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence.”

322

Criminal Appeals and Reviews in Victoria

[6.1100]

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence; (iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive; (iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea; (v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; (vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.552

Once the new evidence is admitted and throws new light on the significance of pre-existing facts, it is generally accepted that the sentencing discretion is re-opened.553 The Court then determines what is an appropriate sentence. In R v Eliasen554 the appellant was diagnosed as suffering from AIDS after he had been sentenced and wished to adduce evidence at the appeal to this effect. The Court stated: This court accedes very sparingly to applications of this kind…However it is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court’s reconsidering the matter in the light of that additional evidence.555

Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.590]. Raising new arguments not raised at sentencing hearing [6.1100]

In R v Romero,556 Redlich JA stated:

In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an 552 R v Nguyen [2006] VSCA 184 at [36]. 553 R v Nguyen [2006] VSCA 184 at [37]. In Nguyen the new evidence was the deteriorating health of his former wife which made it more difficult for her to care for the appellant’s three children. This in turn created greater stress on the appellant whilst in custody. 554 R v Eliasen (1991) 53 A Crim R 391. 555 R v Eliasen (1991) 53 A Crim R 391 at 394. The court allowed the new evidence to be adduced and upheld the appeal. 556 R v Romero (2011) 32 VR 486; [2011] VSCA 45.

[6.1120]

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greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivication of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.557

Orders on successful appeal against sentence [6.1110]

Section 282 of the CPA provides:

(1) if the Court of Appeal allows an appeal under section 278, it must set aside the sentence imposed by the originating court and either – (a) impose the sentence, whether more or less severe, that it considers appropriate; or (b) remit the matter to the originating court. (2) If the Court of Appeal imposes a sentence under subsection (1)(a), it may make any other order that it considers ought to be made. (3) If the Court of Appeal remits a matter to the originating court under subsection (1(b) – (a) it may give directions concerning the manner and scope of the further hearing by the originating court, including a direction as to whether the hearing is to be conducted by the same judge or a different judge; and (b) the originating court, whether constituted by the same judge or a different judge, must hear and determine the matter in accordance with the directions (if any).

(Under the Sentencing Act 1991 (Vic) s 104A(5A), in determining the appeal, the Court of Appeal may direct the amendment of the judgment or sentence to which the appeal relates if satisfied of the matters referred to in subsection (1)(a) or (b), whether the appeal is allowed or dismissed.)

DPP appeals against sentence DPP appeal against inadequacy of sentence imposed by County Court or Supreme Court Right to appeal [6.1120]

Under s 287 of the CPA:

The DPP may appeal to the Court of Appeal against a sentence imposed by an originating court if the DPP – (a) considers that there is an error in the sentence imposed and that a different sentence should be imposed; and (b) is satisfied that an appeal should be brought in the public interest.558 557 R v Romero (2011) 32 VR 486; [2011] VSCA 45 at [11]. 558 The Victorian DPP has produced a detailed policy regarding such appeals: see DPP Director’s Policy 11, Appeals by the DPP to the Court of Appeal (22 August 2014). In deciding whether to commence an appeal under CPA s 287, the DPP focuses on the statutory criteria and applicable principles relating to Crown appeals: Director’s Policy

324

Criminal Appeals and Reviews in Victoria

[6.1130]

Note the DPP does not have to obtain leave to appeal. This type of appeal by the DPP is particularly sensitive because it requires the offender to face being sentenced twice, although the Court of Appeal is not permitted to take into account any element of double jeopardy when deciding whether to allow the appeal or in re-sentencing the offender. In the absence of the requirement to obtain leave, there is potential for this appeal right to be abused. However, the discretion of the DPP is constrained by the requirement that an appeal must be “in the public interest”. The notion of the public interest has a long history in public prosecutions and does not have a fixed meaning.559 Clearly, there must be some sort of public benefit or public advantage in bringing the appeal. One such public benefit is where the specific ground of appeal raises a matter of principle that needs to be addressed by the Court of Appeal for the governance and guidance of sentencing courts or in order to establish and maintain sentencing standards.560 Test to determine DPP appeal [6.1130]

Section 289 of the CPA states:

(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP satisfies the court that – (a) there is an error in the sentence first imposed; and (b) a different sentence should be imposed. (2) In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed. (3) In any other case, the Court of Appeal must dismiss an appeal under section 287.

Section 289(1)(a) and (b) of the CPA are the identical criteria used to determine an appeal by the offender against sentence under CPA s 281(2). It is not sufficient for the DPP to just establish that an error was made. That is a preliminary issue in respect to whether a different sentence should be imposed and reflects the principles set out in House v The King.561 This similarity is also indicative of consistency in appellate practices in Victoria. at [25]–[38]. In 2013–2014 the DPP commenced 12 Crown appeals against sentence of which nine were upheld and three dismissed: Victorian Office of Public Prosecutions, Annual Report 2013-2014 p 18 and App 3. For 2014-15, 15 DPP appeals against sentence were commenced with nine appeals allowed, five dismissed and one abandoned: Victorian Office of Public Prosecutions, Annual Report 2014-2015, p 15. The Commonwealth DPP has also produced a detailed set of guidelines: Commonwealth DPP, Guidelines and Directions Manual, “Appeals” (February 2014). 559 See C Corns, Public Prosecutions in Australia: Law Policy and Practice (Lawbook Co., Sydney, 2014) at [1.40]. 560 DPP v O’Neill [2015] VSCA 325 at [100]. In R v Borkowski (2009) 195 A Crim R 1, the court stated that the purpose of a Crown appeal against sentence is not simply to correct an individual sentence but more broadly, to achieve consistency in sentencing and the establishment of sentencing principles (at 18). Also see Green v The Queen (2011) 244 CLR 462. 561 House v The King (1936) 55 CLR 499.

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In Bui v DPP (Cth),562 the High Court held that when an appellate court is re-sentencing a Commonwealth offender, the appellate court is not required to take into account CPA s 289(2).563 The court stated that under the Crimes Act 1914 (Cth) s 16A there is no scope for the court to take into account any presumed anxiety or distress of the offender in resentencing.564 However, in respect to Commonwealth offenders, proved anxiety or distress arising from re-sentencing could be a relevant sentencing consideration in some cases pursuant to s 16A(m) of the Crimes Act 1914 (Cth), which refers to “mental state”.565 Principles on Crown appeal against sentence [6.1140]

Common law

Under the common law, a Crown appeal against sentence has not been viewed as the converse of an appeal against sentence by a convicted person. Appellate courts have approached Crown appeals with a degree of caution. In Griffiths v The Queen,566 Barwick CJ stated that Crown appeals: should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.567

This constraining view was based on the broader common law rule of double jeopardy. That is, on a Crown appeal against sentence, the convicted person is facing being sentenced for a second time. In R v Osenkowski,568 King CJ stated: The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.569

In R v Clarke,570 Charles JA set out the occasions when a Crown appeal may be appropriate: 562 Bui v DPP (Cth) (2012) 244 CLR 638; [2012] HCA 1. 563 Bui v DPP (Cth) (2012) 244 CLR 638; [2012] HCA 1. 564 Bui v DPP (Cth) (2012) 244 CLR 638; [2012] HCA 1 at [28]. 565 See DPP (Cth) v Le Rosa (2010) 79 NSWLR 79. 566 Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44. 567 Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 at 310 (CLR) [53]. Also see Green v The Queen (2011) 244 CLR 462; [2011] HCA 49. 568 R v Osenkowski (1982) 30 SASR 212. 569 R v Osenkowski (1982) 30 SASR 212 at 212–213. 570 R v Clarke [1996] 2 VR 520.

326

Criminal Appeals and Reviews in Victoria

[6.1145]

(a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Okenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).571

At common law, when determining whether to uphold a Crown appeal, and in re-sentencing, the Court of Appeal was required to take into account aspects of double jeopardy.572 This meant in practice the imposition of a sentence which was somewhat less than should have been imposed at first instance. Residual discretion [6.1145] A court of appeal has an overriding discretion not to interfere with a sentence even though error has been established.573 This is often referred to as the “residual discretion” and could be applied where, for example, the respondent has served most of the sentence, or because of the way the Crown conducted the trial or sentencing hearing. In DPP v Karazisis574 the Court stated that the residual discretion could be exercised where there was no sufficient difference between the sentence first imposed and any sentence the court regarded as appropriate. In Green v The Queen575 the High Court stated: …where disparity is apprehended the residual discretion is enlivened. However, a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender.576

In DPP v Bright,577 Redlich JA emphasised that “manifest inadequacy” in the sentence will not be sufficient alone to justify appellate intervention: Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the 571 R v Clarke [1996] 2 VR 520 at 522–523. 572 R v Tait (1979) 24 ALR 473 at 476–477. 573 DPP v Carter [1998] 1 VR 601; DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350 at [99]. 574 DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350 at [50]. 575 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49. 576 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [37]. 577 DPP v Bright (2006) 163 A Crim R 538; [2006] VSCA 147.

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sentence must be “clear and egregious”, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and “undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes”.578 The burden is on the Crown to establish that the residual discretion should not be exercised.579

How has the CPA affected the common law principles? [6.1150]

In DPP v Karazisis,580 the Court of Appeal stated:

In our opinion, save for the abolition of the element of double jeopardy as a factor that can be taken into account in dealing with Crown appeals, the new provisions do not interfere in any way with the Court’s residual discretion to dismiss such appeals, even if satisfied that the sentence below was inadequate. Nor, save for the abolition of double jeopardy, do these new provisions interfere with the Court’s discretion in imposing a fresh sentence if the appeal is allowed. That conclusion derives both from the construction of the Act, and the long tradition in the common law of viewing Crown appeals as fundamentally different from appeals by convicted persons. The notion that Crown appeals should be “rare and exceptional” no longer applies as a sentencing principle to which this Court must have regard. The legislature, by excluding double jeopardy from consideration by the Court has placed the sole responsibility with the Director for ensuring that Crown appeals are only instituted in those circumstances which meet the criteria for such appeals. As we have said, the principles which lie at the heart of the double jeopardy rule continue to have operative force. Those principles are to be taken into account by the Director in determining whether it is truly in the public interest for an appeal to be brought. The filter has shifted from the court, to the Director, who must, in accordance with the Act, turn his mind to the considerations which lie at the heart of double jeopardy as part of the requirement that he have regard, when deciding whether to institute an appeal, to whether it is really in the public interest to do so.581

The court added: In short, we do not accept that all Crown appeals, to which the new provisions apply, being appeals against those sentences imposed on or after 1 January 2010, are to be determined on the same basis as appeals by convicted persons against their sentences. A Crown appeal against inadequacy of sentence is not to be regarded as simply the other side of the coin, as compared to an offender’s appeal against manifest excess.582

In DPP v O’Neill,583 the court requested the parties to provide submissions on the question “whether specific error may ground a Director’s appeal 578 DPP v Bright (2006) 163 A Crim R 538; [2006] VSCA 147 at [10]. 579 DPP v Zhuang [2015] VSCA 96 at [49]. 580 DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350. 581 DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350 at [119]–[120]. 582 DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350 at [123]. 583 DPP v O’Neill [2015] VSCA 325.

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under ss 287 and 289 of the Criminal Procedure Act 2009”.584 The court concluded that the subsequent submissions disclosed “fundamental misconceptions about the nature of Crown appeals under the Criminal Procedure Act 2009” and set out the following principles: First, as the judgments in DPP v Karazisis make clear, under the present statutory regime the notion that Crown appeals should only be rare and exceptional no longer applies. Second, the Crown may rely upon any of the three types of error enumerated in House v The King. It may be a patent error or a latent error, the latter being the third type of error set out in House v The King, where the sentence is outside the appropriate range. Third, the error must raise a matter of principle that needs to be addressed for the governance and guidance of sentencing courts, or in order to establish or maintain proper sentencing standards. This is a limiting purpose which does not extend to the correction of errors relating only to the particular case. The limiting purpose provides a framework within which to assess the significance of factors relevant to the exercise of the residual discretion whether the court should refuse to intervene. The specified errors, alleged in the grounds of appeal, do not possess the necessary qualities which would permit intervention on a Crown appeal. They raise no error of principle that needs to be addressed for the governance and guidance of sentencing courts or in order to establish or maintain proper sentencing standards.585

Error disclosed but sentence not manifestly inadequate [6.1160] In DPP v O’Neill,586 the court stated that there could be circumstances where a Crown appeal against sentence could be justified, and upheld, even where the sentence is not manifestly inadequate: The joint judgement in Karazisis discussed the broader reach of Crown appeals following the abolition of double jeopardy in ss 289 and 290 of the Criminal Procedure Act 2009 and its prescriptive regime. Nothing in any of the High Court’s judgments concerning Crown appeals suggests that only latent or residual error – the third type of error in House v The King – could warrant bringing or allowing an appeal. Where a specific error ground has the necessary quality to support intervention on a Crown appeal, no authority or principle dictates that there must be a further ground that the sentence is also manifestly inadequate, in order for the Director to bring or succeed on the appeal.587

584 DPP v O’Neill [2015] VSCA 325 at [102]. 585 DPP v O’Neill [2015] VSCA 325 at [103]–[106] (citations omitted). 586 DPP v O’Neill [2015] VSCA 325. 587 DPP v O’Neill [2015] VSCA 325 at [109] (citations omitted).

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Conduct of Crown at trial or sentence [6.1170] The conduct of the prosecution at the trial or the sentencing hearing may be relevant to the way in which a court of appeal determines a Crown appeal against sentence.588 In DPP v O’Neill,589 the court stated: In light of the position adopted by the Crown on the plea it could not be heard to maintain, on a Director’s appeal, that the judge erred in moderating “to some extent” the need for general deterrence. … As we have said, the Crown may not pursue an argument on a Crown appeal that was not distinctly pursued at first instance.590

Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1370]. Orders available on DPP appeal against sentence [6.1180]

Section 290(1) of the CPA provides:

(1) If the Court of Appeal allows an appeal under section 287, it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate. (2) If the Court of Appeal imposes a sentence under subsection (1) it may make any other order that it considers ought to be made. (3) In imposing a sentence under subsection (1), the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.591

Procedure on Crown appeal against sentence [6.1190] Under CPA s 288 the Crown appeal is commenced by filing a notice of appeal within 28 days after the sentence or any extension of that time if granted under CPA s 313(2).592 The notice must be signed by the DPP personally593 and be accompanied by a written case.594 A copy of the 588 This factor may be relevant in terms of the exercise of the residual discretion not to interfere with the sentence: DPP v Oksuz [2015] VSCA 316 at [174]. 589 DPP v O’Neill [2015] VSCA 325. 590 DPP v O’Neill [2015] VSCA 325 at [88] and [93]. Also see Romero v The Queen (2011) 32 VR 486 at; [2011] VSCA 45 at 489-490 [11] and DPP (Cth) v Gregory (2011) 34 VR 1 at 20 [74]. 591 See also CPA s 289(2); DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350; DPP v Hardy [2011] VSCA 86. 592 CPA s 288(1); Supreme Court (Criminal Procedure) Rules 2008 r 2.15(1)(c). The notice must comply with Practice Direction No 2 of 2011, s 17. 593 CPA s 288(2). In Commonwealth matters the DPP will normally sign the notice of appeal. 594 Supreme Court (Criminal Procedure) Rules 2008 r 2.15(1)(c).

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notice must be served on the respondent within seven days of filing and the DPP must provide a copy to the legal practitioner who last appeared for the respondent, if that practitioner can be reasonably identified.595 Admissibility of new evidence on Crown appeal [6.1200]

Section 321 of the CPA provides:

(1) Subject to subsections (2) and (3), on an appeal under this Part, including an appeal by the DPP, the Court of Appeal must not increase a sentence by reason of any evidence that was not given at the trial or sentencing hearing. (2) On an appeal under section 291, the Court of Appeal may increase a sentence by reason of evidence of the failure to fulfil an undertaking referred to in section 291(a). (3) On an appeal under this Part, including an appeal by the DPP, the Court of Appeal may increase a sentence, by reason of any evidence that was not given at the trial or sentencing hearing, if the court considers that – (a) the originating court was misled at the sentencing hearing as to a material fact; and (b) an increase in sentence is necessary in the public interest.

To increase a sentence on appeal on the basis of evidence that was not led at the trial or sentencing hearing would be patently unfair to the appellant as the Court of Appeal can, in general, only consider the merits of the appeal based on the material and the law at the time the sentence was imposed. However, the two exceptions to this general rule in s 321 are both based on the broader public interest in the proper administration of criminal justice. First, on an appeal by the DPP against sentence on the basis of the offender’s failure to assist the authorities, evidence of that failure is clearly admissible before the Court of Appeal.596 Second, if the originating court was misled at the sentencing hearing as to a material fact, the Court of Appeal can increase the sentence on the basis of the new evidence.597 In this circumstance the original sentence could be described as obtained by a fraud and thus voidable. An example could be that the original sentence was determined on the basis that the offender was drug-free and rehabilitated when in fact he or she was actively using drugs and not rehabilitated. Section 321(3) of the CPA has clarified and broadened the extent to which fresh evidence on a Crown appeal may be admissible. Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1415]. 595 CPA s 288(3), (4). 596 CPA s 321(2). 597 See DPP v Burgess (2001) 3 VR 363; [2001] VSCA 170.

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A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.130]. DPP appeal sentence: breach of undertaking to assist [6.1210] It is not uncommon for an offender, prior to sentencing, to agree to give evidence against a co-accused or to provide other assistance to the authorities. Such assistance can operate as a powerful mitigating factor at sentencing. The offender’s undertaking has been described as the offender “entering into a contract with the community” or a “bargain with the community”.598 In return for the offender’s assistance, he or she receives a reduced sentence. It is also not uncommon for an offender who has given such an undertaking to fail to honour their undertaking. Right to appeal [6.1220]

Section 291 of the CPA states:

Without limiting any right of appeal under section 297, the DPP may appeal to the Court of Appeal against a sentence imposed on a person by an originating court if – (a) the sentence was less severe because of an undertaking given by the person to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, whether or not proceedings for that offence had commenced at the time of sentencing; and (b) the DPP considers that the person has failed, wholly or partly, to fulfil the undertaking.

If the statutory criteria set out in s 291 are met, it would only be in exceptional circumstances that the DPP would not commence an appeal under CPA s 291.599 Test used to determine appeal [6.1230]

Under s 293 of the CPA:

On an appeal under section 291, if the Court of Appeal considers that the respondent has failed, wholly or partly, to fulfil the undertaking referred to in section 291(a), the Court of Appeal may allow the appeal.

The appeal is not conducted as a rehearing and there is no issue of whether there is an error in the sentence imposed. The whole case is thus not heard again. The Court of Appeal “does not exercise a fresh sentencing discretion” and does not start with “a fresh piece of paper”.600 The Court of Appeal determines if the respondent has “failed, wholly or partly, to fulfil the undertaking” and, if satisfied of the failure, the appeal is allowed. 598 DPP v Mann [2006] VSCA 228 at [10] per Warren CJ. Under the Sentencing Act 1991 s 5(2AB) if the court imposes a less severe sentence because the accused has agreed to assist the authorities, the court must announce that it has taken that undertaking into account and enter into the court records that the accused has given the undertaking. 599 DPP Director’s Policy 11 (22 August 2014) at [40]. The criteria in CPA s 287 have no direct application to an appeal under s 291. 600 DPP v Mann [2006] VSCA 228 at [10].

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A number of principles have been developed from the cases dealing with this type of DPP appeal. In summary: • the general approach is that a more severe sentence will be imposed once the breach of undertaking is established, unless there are exceptional circumstances; • constraints of double jeopardy do not apply when the Court of Appeal re-sentences the offender; • the new sentence cannot exceed that which the judge in the originating court would have imposed but for the undertaking to assist; and • threats made to the offender in prison do not alter the fact that the offender has failed to pay the price for the reduced sentence given at first instance.601 Orders available on successful appeal [6.1240]

Section 294 of the CPA states:

(1) If the Court of Appeal allows an appeal under section 291, it may – (a) set aside the sentence imposed by the originating court; and (b) impose the sentence that it considers appropriate, having regard to the failure of the respondent to fulfil the undertaking. (2) In imposing a sentence under subsection (1), the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.

Procedure under CPA s 291 [6.1250] An appeal under CPA s 291 is commenced by the DPP filing a notice with the Registrar of the Supreme Court in accordance with the rules of the Supreme Court.602 Consistent with a DPP appeal against an inadequate sentence, the notice must be signed personally by the DPP and a copy of the notice (and the written case) must be served personally on the respondent within 14 days of filing the notice.603 Within seven days of serving the notice on the respondent, the DPP must file an affidavit of service.604 The notice must state each ground of appeal concisely and not merely in general terms.605 The notice must be accompanied by a written case in support of the appeal.606 The DPP must provide a copy of the notice to the legal practitioner who last appeared 601 These principles are listed in DPP v Mann [2006] VSCA 228 at [8]; see also DPP v Briggs [2010] VSCA 82; Yang v The Queen [2011] VSCA 161; DPP v S (No 2) [2009] VSCA 127; and DPP (Cth) v Carey [2012] VSCA 15. 602 CPA s 292(1); Supreme Court (Criminal Procedure) Rules 2008 r 2.15(1). 603 CPA s 292(3). 604 Supreme Court (Criminal Procedure) Rules 2008 r 2.15(3). 605 Supreme Court (Criminal Procedure) Rules 2008 r 2.15(1)(b). 606 Supreme Court (Criminal Procedure) Rules 2008 r 2.15(1)(c).

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for the respondent, if that practitioner can be reasonably identified.607 Within one month after being served with the notice the respondent may file and serve a written case.608 Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1330]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.105]. Judicial College of Victoria, Sentencing Manual (2016) at [20.4.2.3].

Guideline judgment [6.1260] Section 6AA of the Sentencing Act 1991 (Vic) defines a guideline judgment as: a judgment that is expressed to contain guidelines to be taken into account by courts in sentencing offenders, being guidelines that apply – (a) (b) (c) (d) (e)

generally; or to a particular court or class of court; or to a particular offence or class of offence; or to a particular penalty or class of penalty; or to a particular class of offender.

As the name suggests, the purpose of a guideline judgment is to provide guidance and assistance to all courts in Victoria in relation to the use of a particular sentence. A guideline judgment thus serves the broad public interest in the administration of criminal justice. Provision for the Court of Appeal to hand down a guideline judgment was introduced in 2003, but it was not until 2013 that the first application was made to the Court of Appeal to deliver a guideline judgment. Jurisdiction [6.1270]

Section 6AB of the Sentencing Act 1991 (Vic) provides:

(1) On hearing and considering an appeal against sentence, the Court of Appeal may (on its own initiative or an application made by a party to the appeal) consider whether – (a) to give a guideline judgment; or (b) to review a guideline judgment given by it in a previous proceeding. (2) On a review of a guideline judgment, the Court of Appeal may – (a) confirm the guideline judgment; or (b) vary the guideline judgment; or (c) revoke the guideline judgment; or 607 CPA s 292(3), (4). 608 Supreme Court (Criminal Procedure) Rules 2008 r 2.15(4).

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(d) substitute the guideline judgment with a new guideline judgment. The Court of Appeal may give or review a guideline judgment even if it is not necessary for the purpose of determining any appeal in which the judgment is given or reviewed. A decision of the Court of Appeal to give or vary a guideline judgment must be a unanimous decision of the Judges constituting the Court. A guideline judgment may be given separately to, or included in, the Court of Appeal’s judgment in an appeal. Nothing in this Part requires the Court of Appeal to give or review a guideline judgment if it considers it inappropriate to do so.

Note that any party to the appeal can make application for a guideline judgment, or the Court of Appeal can decide on its own initiative to deliver a guideline judgment. Matters of regard for the court [6.1280] Under s 6AE of the Sentencing Act 1991 (Vic), in considering the giving of, or in reviewing, a guideline judgment, the Court of Appeal must have regard to the following factors: (a) the need to promote consistency of approach in sentencing offenders; and (b) the need to promote public confidence in the criminal justice system; and (c) any views stated by the Sentencing Advisory Council and any submissions made by the Director of Public Prosecutions or a lawyer under section 6AD.

A guideline in a guideline judgment is additional to any other matters that a sentencing court is required to take into account under Pt 2 of the Sentencing Act 1991 (Vic).609 Content [6.1290] According to s 6AC of the Sentencing Act 1991 (Vic), a guideline judgment may set out the following: (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 by which a sentencing court may use to reduce the sentence for an offence; (e) the weighting to be given to relevant criteria; (ea) guidelines for sentencing offenders for baseline offences; (f) any other matter consistent with the principles contained in this Act.

Procedure [6.1300] Under s 6AD of the Sentencing Act 1991 (Vic), if the Court of Appeal decides to give or review a guideline judgment it must: 609 Sentencing Act 1991 (Vic) s 6AG. Part 2 of the Sentencing Act 1991 sets out a broad range of matters that a court must take into account in deciding an appropriate sentence. Guidance in a guideline judgment is a separate consideration the court must also take into account and is not subsumed within any of the matters set out in Pt 2 of the Act.

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(a) cause the Sentencing Advisory Council to be notified and consider any views stated in writing, within the period specified in the notification, by that Council; and (b) give – (i) the Director of Public Prosecutions or a lawyer representing the Director; and (ii) a lawyer representing Victoria Legal Aid, whether or not employed by Victoria Legal Aid, or a lawyer arranged by Victoria Legal Aid – an opportunity to appear before the Court and make a submission on the matter.

In giving or reviewing a guideline judgment, the court may inform itself on any matter as it sees fit and is not constrained by the provisions in Pt 6.3 of the CPA which apply to appeals in general to the Court of Appeal.610 Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.595]; and P Priest, “Sentencing” in I Freckelton (ed), Sentencing Act 1991 Annotated Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.1.2000]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.15]. Judicial College of Victoria, Sentencing Manual (2016) at [8.5.1]. Boulton v The Queen [6.1310] The Court of Appeal handed down its first guideline judgment in Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen (hereafter “Boulton v The Queen”),611 a specially convened Bench of five justices. The DPP had requested a guideline judgement. The impetus for the DPP requesting a guideline judgment was considerable uncertainty as to the operation of the newly-introduced Community Corrections Order (“CCO”). The guideline judgment sets out detailed guidance to assist courts in deciding when to use a CCO and its contents. Given that the judgment in Boulton v The Queen is the first guideline judgment in Victoria, and given the importance of guideline judgments in the role of an appellate court, this section of the chapter examines the judgment in some detail. Structure of the judgment [6.1320] The judgment in Boulton v The Queen consists of two parts. Part 1 contains the guideline judgment and consists of: (a) the reasons why the Court of Appeal concluded that this was an appropriate case for 610 Sentencing Act 1991 (Vic) s 6AF. 611 Boulton v The Queen [2014] VSCA 342.

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delivering a guideline judgment; and (b) the analysis of the CCO as a sentencing option. Part 2 of the judgment contains the judgment in each of the three cases appealed. The judgment also contains three Appendices: • Appendix 1 is a concise set of guidelines (based on the major guideline judgment) in a form suitable for use by sentencing courts in Victoria; • Appendix 2 sets out the provisions in the Sentencing Act 1991 (Vic) which authorise the court to deliver a guideline judgment; and • Appendix 3 sets out the CCO provisions in force at the time of the judgment. Procedural background [6.1330] Each of the three appellants was sentenced to a CCO and each applied under s 278 of the CPA for leave to appeal the sentence. The DPP (as a party to the appeals) applied to the Court of Appeal for a guideline judgment pursuant to s 6AB(1)(a) of the Sentencing Act 1991 (Vic). The DPP’s application came on for hearing by Nettle, Redlich and Coghlan JJA on 14 November 2013: The Director submitted that there was a need for guidance from this Court to sentencing judges and magistrates about the considerations which should be brought to bear in deciding whether a CCO was an appropriate sentencing disposition in a particular case and, if so, what the duration of the order should be and what conditions should be attached to it.612

The court concluded that the applications for leave and the application by the DPP for a guideline judgment should be referred to a Bench of five judges. The court stated: In any event, all things considered, we are persuaded it is sufficiently arguable that it might be appropriate to give a guideline judgment in each of the three proceedings that the Director’s application for guideline judgment should be referred to a court of not less than five members … for determination at the same time as the hearing and determination of the appeal in each proceeding.613

The court granted leave to appeal in all three cases. Victoria Legal Aid (“VLA”) and the Sentencing Advisory Council were given notice of the DPP’s application and invited to make submissions. The Sentencing Advisory Council, VLA, the Victorian Attorney-General, and the three appellants all provided written submissions to the court. On 31 July 2014 the three appeals against sentence and the application by the DPP came on for hearing before a Bench of five Appeal Judges (Maxwell P, Nettle, Neave, Redlich and Osborne JJA). The court first heard submissions in respect to each appeal before deciding whether to deliver a guideline judgment. 612 Boulton v The Queen [2014] VSCA 342 at [11]. The DPP was seeking a guideline judgment within the meaning of s 6AA(d) of the Sentencing Act 1991 – that is, a judgment that will apply “to a particular penalty or class of penalty”. 613 Boulton v The Queen (unreported, Vic Court of Appeal, Nettle, Redlich and Coghlan JJA, 14 November 2013) at [5]-[6].

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Case for guideline judgment [6.1340] The court accepted that the provision of a guideline judgment should: “(a) promote consistency in sentencing and public confidence in the criminal justice system; and (b) ensure that the CCO system operates as intended”.614 The court explained: The giving of a guideline judgment is not a substitute for the case-by-case development of the law. The one complements the other. The great advantage of the case-by-case process is that it ensures that the development of legal principles is informed by the practical realities of individual cases. The great advantage of a guideline judgment is that it enables this Court to deal systematically and comprehensively with a particular topic or topics relevant to sentencing, rather than being confined to the questions raised by particular appeals.615

Contents of proposed guideline judgment [6.1350] The DPP submitted that a guideline judgment should address the issue of: whether a CCO was an appropriate sentencing disposition in a particular case; and what length a CCO should be imposed, the maximum period being equal to the maximum term of imprisonment for the relevant offence.616

The DPP then set out the following more specific questions to be addressed in the guideline judgment: (a) what are the criteria to be applied in selecting between a CCO and other sentencing alternatives? (b) are punishment, denunciation and general deterrence relevant sentencing considerations in determining the period of a CCO? (c) to what extent are specific deterrence and community protection relevant considerations in determining the period of a CCO? (d) is a Court entitled to take into account the capacity for a CCO to be varied according to s 48N of the Act in determining the period? (e) what kinds of evidentiary material would assist the court in determining an appropriate period for a CCO? (f) what are the kinds of circumstances in which very lengthy CCOs will be appropriate? (g) what are the kinds of circumstances in which very lengthy CCOs will be inappropriate?617 614 Boulton v The Queen [2014] VSCA 342 at [25]. Section 6AE of the Sentencing Act 1991 (Vic) states that the Court of Appeal must have regard to the need for consistency and public confidence in deciding whether to issue a guideline judgment. The court also accepted that there was a lack of transparency in the reasoning adopted by courts for deciding on imposing a CCO, the current uncertainties make it difficult to advise clients, and the CCO is now particularly important given the abolition of suspended sentences and the Intensive Corrections Order: at [21]–[25]. 615 Boulton v The Queen [2014] VSCA 342 at [26]. 616 Boulton v The Queen [2014] VSCA 342 at [51]. 617 Boulton v The Queen [2014] VSCA 342 at [52].

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In a later submission, the DPP submitted that all of these questions could be related to a single key question: “What is the relationship between the sentencing purposes set out in s 5 of the Act and the different components of a CCO?” The court noted that this question was central and that it was important that courts be given guidance on how to approach it.618 These questions provided the framework for the guideline judgment. It can be seen that in initiating the guideline judgment and in formulating these questions and issues, the DPP played an important role in the overall process. As this is not a book on sentencing law, it is not intended to outline how the court discussed each and every question and issue posed by the DPP. Rather, to illustrate how the court provided guidance, this section of the chapter only discusses one of the key issues – namely: “To what extent can a CCO be punitive?”619 Illustrative guidance: To what extent can a CCO be punitive? [6.1360] After providing a detailed history of the CCO, the court noted that “[t]he CCO provisions reflect both punitive and rehabilitative components of community-based sentencing”.620 There existed some uncertainty as to whether the primary purpose of a CCO was intended to be punitive or rehabilitative. In answering this question the court noted first that the two overarching principles which should govern the entire CCO regime were the principle of proportionality and the suitability of an offender for a CCO.621 In all cases, the imposition of a CCO must be a proportionate response to the seriousness of the offending and the culpability of the offender. Further, the court should be in a position to evaluate whether an offender is a suitable candidate for a CCO. The court then set out the various ways in which a CCO can indeed be punitive. These include, for example, mandatory conditions (under s 45) which impact on the offender’s liberty, the fact that a contravention of any condition is an offence in itself and subject to a term of imprisonment, and the range of conditions which can be attached to a CCO.622 The court stated: The challenge for sentencing courts in the early years of the CCO regime will be to re-examine the conventional wisdom about the types of offending which ordinarily attract a term of imprisonment. For reasons which follow, such a 618 Boulton v The Queen [2014] VSCA 342 at [53]. 619 Boulton v The Queen [2014] VSCA 342 at [85]. 620 Boulton v The Queen [2014] VSCA 342 at [62]. 621 Boulton v The Queen [2014] VSCA 342 at [63]. 622 Boulton v The Queen [2014] VSCA 342 at [90]–[98].

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re-examination is essential if the CCO is to fulfil its potential as a sentencing option, in accordance with the legislature’s clearly expressed intention.623

The court further stated: The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.624

The court thus proposed a “reconceptualisation” of sentencing options currently available.625 Part of that reconceptualisation was to sharply compare the limited punitive purpose of imprisonment with the “multi-purpose” character of a CCO. The CCO could thus be suitable: even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some kinds of homicide.626

The court noted that the avoidance of imprisonment is particularly important in the case of young offenders when the sentencing purpose of rehabilitation should, in general, be paramount. The court set out guidance for imposing a CCO on young offenders.627 The court also set out guidance in respect to the other questions and issues raised by the DPP. Outcome of each appeal [6.1370] Although the outcomes of these appeals are not formally part of the guideline judgment, they do provide specific guidance for sentencing courts in deciding whether to impose a CCO and, if so, the duration of the order. In each of the three individual appeals the Court of Appeal concluded that there was an error in the sentence originally imposed and that a different sentence should be imposed. In the case of Boulton the original sentence was three months’ imprisonment on Charge 1 (armed robbery) and, on release from prison, a CCO (with conditions) of eight years. On Charge 2 (recklessly cause injury) the sentence was a term of imprisonment equal to time served (265 days) and a CCO of five years to be served concurrently with the CCO on the first charge. The Court of Appeal accepted that the sentences were manifestly excessive, stating that: the combination of an eight year CCO and the term of imprisonment which Mr Boulton would actually have served by the time the CCOs commence breached the principle of proportionality. The combined punitive effect of 623 Boulton v The Queen [2014] VSCA 342 at [103]. 624 Boulton v The Queen [2014] VSCA 342 at [113]. 625 Boulton v The Queen [2014] VSCA 342 at [121]. 626 Boulton v The Queen [2014] VSCA 342 at [131]. 627 Boulton v The Queen [2014] VSCA 342 at [186]–[190].

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12 months in custody and being subject to a lengthy CCO is disproportionate to the gravity of the offending and Mr Boulton’s reduced culpability.628

The court re-sentenced Boulton to 354 days of imprisonment on Charge 1, together with a CCO of three years duration. On Charge 2 a CCO of two years and six months was imposed to be served concurrently, with the same conditions as originally imposed. In the case of Clements the original sentence for Charge 1 (armed robbery) was a 10-year CCO and a $3000 fine. On Charge 2 (attempted armed robbery) a 10-year CCO was imposed and a $1000 fine. The CCOs were to be served concurrently. On the appeal, the DPP conceded that the judge had erred in disregarding the application of the principle of parity (in respect to a co-offender). The court reduced the CCO to 6 years’ duration but otherwise confirmed the orders originally made.629 In the case of Fitzgerald, the original sentence was a five-year CCO (for two counts of common assault). The appellant, who had an extensive history of mental illness, had served 540 pre-sentence days. The Court of Appeal held that the sentence of a CCO was manifestly excessive and re-sentenced the appellant to time already served.630 Analysis [6.1380] The judgment in Boulton is a good example of how and when a guideline judgment can be used. The court accepted that, with the introduction of a new and flexible sentencing option, such as a CCO, sentencing courts required guidance and clarity in respect to key questions such as in respect to when it is appropriate to impose a CCO, the factors that will determine the length of the CCO, and the conditions that should be attached to the order. These questions were especially important as the CCO was designed to replace previously available sentencing options, such as the suspended sentence and the Intensive Corrections Order, both of which were terms of imprisonment. The court confirmed that a CCO can be appropriate even in quite serious cases where a term of imprisonment would otherwise be imposed, and that a CCO is intended to be punitive in nature and punitive every day it is served. The judgment in Boulton is significant because it entails that sentencing courts in Victoria have to rethink the traditional way in which imprisonment, as a sentencing option, has been used, and the way in which a CCO could be used instead of imprisonment. This is a very significant shift in sentencing jurisprudence in Victoria. The set of guidelines in Appendix 1 of the judgment provide invaluable guidance to sentencing courts. In doing so, just outcomes are enhanced 628 Boulton v The Queen [2014] VSCA 342 at [243]. 629 Boulton v The Queen [2014] VSCA 342 at [280]. 630 Boulton v The Queen [2014] VSCA 342 at [317].

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not simply in the individual case, but more broadly on a system-wide basis with enhanced consistency and transparency in decision-making. Although appeal courts enhance consistency in sentencing decisionmaking by setting out principles to be applied by sentencing courts, an appeal court is able to provide very specific consistency through the delivery of a guideline judgment without encroaching on the crucial role that judicial discretion plays in sentencing. The decision of the court to uphold the appeal in all three cases, and the fresh sentences imposed in each case, also provided specific guidance on when it is appropriate to impose a CCO (and its length) and when it is not appropriate to impose a CCO. Based on the history of guideline judgments in Victoria, it may be some time before the circumstances again arise when the Court of Appeal considers it appropriate to deliver another guideline judgment.

PART C: CASE STATED Jurisdiction [6.1390]

Section 302(1) of the CPA provides:

(1) This section applies to a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence. (2) In a proceeding referred to in subsection (1), if a question of law arises before or during the trial, the court may reserve the question for determination by the Court of Appeal if the court is satisfied that it is in the interests of justice to do so, having regard to – (a) the extent of any resultant delay or disruption to the trial process that may arise if the question of law is reserved; (b) whether the determination of the question of law may – (i) render the trial unnecessary; or (ii) substantially reduce the time required for the trial; or (iii) resolve a novel question of law necessary for the proper conduct of the trial; or (iv) reduce the likelihood of a subsequent successful appeal against conviction if the accused is convicted; and (3) The court must not reserve a question of law after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.631

Although s 302 of the CPA does not state as much, any party to the proceedings can make an application to the trial judge to state a case, or the trial judge can, on his or her own initiative, decide to state a case. Note that this procedure is available both before the trial and during the 631 The case stated procedure derives from the English Court of Crown Cases Reserved. The procedure under CPA s 302(1) is not available if the accused has pleaded guilty as there is no “trial”: R v His Honour Judge Hewitt; Ex parte Attorney-General for Victoria [1973] VR 484. Facts can be the basis of a case stated: DPP (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30.

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trial. (A trial commences when “the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with s 217.”632) The procedure is available in respect to trials for both State offences and federal offences.633 Division 3 of Pt X of the Judiciary Act 1903 (Cth) sets out a procedure for the case stated. This procedure operates in tandem with s 302 of the CPA. The test to be applied in CPA s 302(2) attempts to balance, on the one hand, the need to avoid fragmentation of criminal proceedings (particularly where the trial has commenced) and, on the other hand, the expeditious determination of a question of law that could render the trial unnecessary or reduce the length of the trial, or reduce successful appeals against conviction.634 These are the same policy considerations that the Court of Appeal applies in determining whether to grant leave in an interlocutory appeal, discussed in Chapter 5. As discussed in Chapter 4, under CPA s 302A the case stated procedure is also available in respect to appeals from the Magistrates’ Court to the County Court, except that the reference to “trial” in s 302 is replaced with “hearing” in s 302A, and only the first three considerations in s 302(b) are listed in s 302A(b). The Supreme Court Practice Statement No 1 of 2016, “Interlocutory Appeals and Reserved Questions of Law in Criminal Proceedings” applies to a case stated. Rule 14.1 of the 2016 Practice Statement provides: In general, and making allowance for their different nature, the Registrar will manage reserved questions of law, or the refusal to certify a question of law, pursuant to sections 302 and 304 of the Act in accordance with this Practice Statement, and, in the case of a refusal to reserve a question of law, Part 4 of Order 2 of the Rules. 632 CPA s 210(1). 633 In R v Gee (2003) 212 CLR 230; [2003] HCA 12 the High Court held that the case stated procedure under the South Australian State law was available where the court is conducting a trial for a federal offence. The court held that s 68 of the Judiciary Act 1903 included the case stated procedure within the category of an “appeal”. Section 72(1A) of the Judiciary Act 1903 (Cth) provides that if a person is indicted before a court (other than the Federal Court and nominated Territory courts) for a Commonwealth offence, the court must (if a jury has not delivered its verdict) and may (without an application) reserve a question of law that has arisen in the trial for the consideration of the High Court or the Full Court of the Supreme Court where the trial is held. If the accused has been convicted, and a question of law was reserved before judgment (verdict), the judge can respite or postpone the judgment until the question has been answered: Judiciary Act 1903 (Cth) s 72(2). The trial judge then states a case for consideration of the High Court or the Full Court of the Supreme Court. Under the Judiciary Act 1903 (Cth) s 76, if the accused has been convicted, and the trial court arrests judgment, the prosecution can apply for a case stated and the judge must state the case. For powers of the High Court or the Full Court of the Supreme Court on determining the question stated, see Judiciary Act 1903 (Cth) s 73. 634 An example of the usefulness of the case stated procedure is R v Hamilton-Byrne [1995] 1 VR 129 where the trial on one of the counts was determined to be unnecessary.

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What is a question of law? [6.1400] The case stated procedure only applies to a question of law, as distinct from a question of fact or a question of mixed fact and law. In R v Assange,635 the Court of Appeal stated that it could decline to answer a case stated where: The case stated does not set out any facts which are said to relate specifically to particular counts on the indictment, even though the agreed summary of facts tendered in evidence had done so.636

The case stated did not show how the so-called questions of law arose, and the court cannot look at materials outside the case stated.637 The court also held that there was considerable ambiguity and generality in the questions posed in the case stated: For present purposes it is sufficient if I say that it seems to me that, at least in this case, a question of the generality which is presented for us, a question which is, in effect, “What does a particular section of the Commonwealth Crimes act mean?”, is not a question that arises on the trial of the accused.638

For these reasons, in Assange the court refused to answer the questions in the case stated. The issue whether a judge has properly exercised a judicial discretion is not a question of law.639 Further, hypotheticial questions do not fall within the scope of CPA s 302(1).640

Procedure where trial commenced [6.1410]

Under CPA s 303:

(1) If a court reserved a question of law under section 302 after the trial has commenced, the court must adjourn the trial without discharging the jury, if reasonably practicable, until the question of law has been determined.

Refusal to reserve [6.1420] If a party to the trial, or to the County Court appeal, applied to the trial judge to reserve a question of law and the trial judge refused to do so, then under s 304 CPA: the applicant may apply to the Court of Appeal for an order calling on – (a) the court which dismissed the application; and (b) the respondent – to show cause why the question of law should not be reserved for determination by the Court of appeal. 635 R v Assange [1997] 2 VR 247. 636 R v Assange [1997] 2 VR 247 at 250. 637 R v Assange [1997] 2 VR 247 at 249; Furze v Nixon (2000) 2 VR 503. 638 R v Assange [1997] 2 VR 247 at 254. 639 At least for the purposes of a DPP Reference: DPP Reference (No 1 of 1984) [1984] VR 727 at 729. 640 DPP (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30; R v Nixon (2000) 159 FLR 296; [2000] SASC 437 at [1].

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(2) On an application under subsection (1) the Court of Appeal may order that the question of law be reserved for its determination or refuse the application with or without costs. (3) If the Court of Appeal orders that the question of law be reserved, the court to which the order is directed must reserve the question for determination by the Court of Appeal.

This application to the Court of Appeal is of right and should be made using Form 6-2E.641 Rule 2.17 of the Supreme Court (Criminal Procedure) Rules 2008 states that the applicant must, within seven days of filing the application to show cause, file an affidavit setting out the circumstances of the refusal of the trial judge, and the grounds as to why the question should be reserved for the Court of Appeal.642 The affidavit should include a copy of the order refusing to state a case, a copy of the reasons for the refusal, and any exhibits. However, r 8.2 of the Practice Statement No 1 of 2016 states that, unless actually directed by the Registrar, no affidavit will be required to be filed and served. Instead, the Registrar will usually direct that the parties “file an agreed document setting out a succinct narrative history of the conduct of the matter to date”.

Trial judge “states a case” [6.1430]

Under CPA s 305:

(1) If a court reserves a question of law under s 302, 302A or 304, it must state a case, setting out the question and the circumstances under which the question has arisen. (2) The court must sign the case stated and transmit it within a reasonable time to the Court of Appeal. (3) The Court of Appeal may return a case stated transmitted to it under subsection (2) for amendment and the court that stated the case must amend it as required.

The trial judge must set out all the ultimate facts upon which his or her conclusion is based.643 The judge can attach background documents, such as the prosecution opening and the defence response, to the prosecution opening.

Determination by Court of Appeal [6.1440]

Under CPA s 306:

(1) The Court of Appeal may hear and finally determine the question of law set out in the case stated. (2) In the case of a question of reserved under section 302, 302A or 304, the Court of Appeal may remit the question and the determination of the Court of Appeal back to the court which reserved the question. (3) The applicant is not required to attend the hearing under subsection (1). 641 Supreme Court (Criminal Procedure) Rules 2008 r 2.16. 642 Supreme Court (Criminal Procedure) Rules 2008 r 2.17. 643 R v Assange [1997] 2 VR 247.

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In determining the question of law in the case stated, the Court of Appeal is not, in general, permitted to go beyond the materials set out in the case stated.644 The Court of Appeal can decline to answer the question in the case stated if it lacks jurisdiction to determine the issue or it is otherwise inappropriate to answer the question. For example, in DPP (Cth) v JM,645 at the beginning of a trial in the Supreme Court of Victoria, Weinberg J posed three questions in a case stated for the opinion of the Court of Appeal. The Court of Appeal determined that the questions posed by Weinberg J were not properly worded and remitted the questions back to his Honour to be reformulated. On appeal by the Commonwealth DPP, the High Court held that the Victorian Court of Appeal had erred in remitting the questions back to Weinberg J. The High Court answered the questions posed and remitted the answers back to Weinberg J.

Remittal of case stated [6.1450] After the Court of Appeal has answered the case stated, the Registrar of Criminal Appeals of the Supreme Court then transmits the judgment and order (if any) of the Court of Appeal to the court which reserved the question and that court then enters the determination on the court record.646

Costs on case stated [6.1460] On a case stated the general principle is that costs are not awarded.647 However, on an application under s 304 of the CPA, the Court of Appeal has a discretion as to costs: CPA s 304(2). Where the Crown initiated the case stated, the Court of Appeal has no statutory power to award costs against the Crown.648 However, the accused may apply under s 15C of the Appeal Costs Act 1998 (Vic) for an indemnity certificate. Examples of case stated [6.1470] In Lydgate (a pseudonym) v The Queen,649 the former principal of a school was charged under the Crimes Act 1958 (Vic) ss 48 and 39 with engaging in sexual activities with a former pupil aged 16–17 who was under his care, supervision or authority. Prior to the commencement of the trial, the parties agreed that the single issue in the trial was whether the prosecution could establish that at the time of the offence the complainant was under his care, supervision or authority. The question of 644 R v Assange [1997] 2 VR 247. 645 DPP (Cth) v JM [2013] HCA 30. 646 CPA s 307. 647 CPA s 409. 648 R v Payara (2012) 36 VR 326; [2012] VSCA 266; R v Goia (1987) 88 FLR 211 at 213. 649 Lydgate (a pseudonym) v The Queen [2014] VSCA 144.

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law was whether evidence of the former relationship between the accused and the complainant was relevant and admissible to prove that, at the time of the alleged offending (after the accused had resigned), the complainant was under his care, supervision or authority. Since this was a novel question of law and, depending upon its disposition, could render the trial unnecessary, the trial judge reserved six questions of law for the consideration of the Court of Appeal pursuant to CPA s 302. The Court of Appeal answered the six questions and remitted the answers back to the trial judge. In DPP (Cth) v Galloway (a pseudonym),650 four accused had been charged with serious Commonwealth offences. The defence was that the prosecution evidence had been obtained illegally and unlawfully, and to use such evidence would result in an unfair trial. All four accused made an application for a permanent stay. At a preliminary hearing, the prosecution called a lawyer for the AFP/Commonwealth Director of Public Prosecutions (“CDPP”) and counsel for the accused indicated he wished to cross-examine the witness about confidential communications between the CDPP and the AFP. The prosecution argued that the witness was not obliged to answer the questions on the basis of legal professional privilege. The trial judge ruled the witness was required to answer the questions pursuant to s 123 of the Evidence Act 2008 (Vic). The prosecution then sought leave to appeal her Honour’s decision through an interlocutory appeal pursuant to CPA s 295. When the matter came on for hearing, the Court of Appeal pointed out to the parties the difficulties of using the interlocutory procedure to bring the matter before the court.651 The Court of Appeal then suggested that the case stated procedure might be a better mechanism to bring the matter before the court. The parties and the trial judge agreed, and five questions of law were provided by way of a case stated. The Court of Appeal noted that “this is a very good example of how these new procedures introduced in 2009 can be utilised to enable the resolution of a pre-trial question of major significance”: at [19]. The court provided answers to the questions and remitted the answers to the trial judge.

650 DPP (Cth) v Galloway (a pseudonym) [2014] VSCA 272. 651 That is, under CPA s 295(3) a party may not seek leave to appeal unless the judge certifies: (a) if the decision concerns the admissibility of evidence that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and (b) if the evidence does not concern the admissibility of evidence, that the decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal: see CGL v DPP (No 2) (2010) 24 VR 482; [2010] VSCA 24. The problem was that the judge’s decision did concern the admissibility of evidence, but the evidence in question, if ruled inadmissible, would not eliminate or substantially weaken the prosecution case.

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Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1810]–[3.3.1875]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.145]. Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.4. Supreme Court of Victoria, Court of Appeal, Practice Statement No 1 of 2016.

Referral of question of law under Victorian Charter of Human Rights [6.1480] A separate source of power to refer a question of law to the Court of Appeal is the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 33, which provides: (1) If in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if – (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court. (2) If a question has been referred to the Supreme Court under subsection (1), the court or tribunal referring the question must not – (a) make a determination to which the question is relevant while the question is pending; or (b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question. (3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court or the County Court, the referral is to be made to the Court of Appeal. (4) Despite anything contained in any other Act, if a question arises of a kind referred to in subsection (1), that question may only be referred to the Supreme Court in accordance with this section.

An example of a referral under s 33 of the Charter is Slaveski v Smith,652 discussed in Chapter 2 of this book (at [2.250]). Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.4.2. 652 Slaveski v Smith (2012) 34 VR 206; [2012] VSCA 25.

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DPP reference to Court of Appeal Jurisdiction [6.1490]

Section 308 of the CPA states:

(1) If a person is acquitted in respect of all or any charges – (a) in a trial on indictment before the Supreme Court or the County Court; or (b) on an appeal to the County Court from the Magistrates’ Court … – the DPP may refer to the Court of Appeal any point of law that has arisen in the proceeding. (2) The Court of Appeal is to consider a point of law referred to it under subsection (1) and give its opinion on it. (3) An acquitted person who appears in court in person or by a legal practitioner is entitled to reasonable costs as settled by the Costs Court. (4) A reference under this section does not affect the trial or hearing in relation to which the reference is made or an acquittal in that trial or hearing.

Section 308(4)CPA reflects the common law principle of double jeopardy and the inability of the prosecution to appeal an acquittal. A DPP Reference under CPA s 308 is not an appeal as the reference to the Court of Appeal is not against a judgment or an order, nor does the result affect any person’s rights. It is, however, an appeal in the general sense of a party applying to a higher court for its opinion on an important point of law.653 Costs on DPP reference [6.1500] Section 308(3) of the CPA states that the acquitted person who appears in court on the hearing of the reference is entitled to reasonable costs as determined by the Costs Court. Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.2010]. Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 20.4.4.3.

Judicial review of decisions made by County Court or Supreme Court [6.1510] In some circumstances a party could seek judicial review of a decision or order made by a judge in the higher courts. As explained in Chapter 1 at [1.40], judicial review is a different form of higher court review than a statutory appeal, and should not be commenced unless no 653 Mellifont v Attorney-General (Qld) (1991) 173 CLR 289. For examples of a DPP Reference, see DPP (Vic) Reference No 2 of 1996 (1998) 3 VR 241; DPP (Cth) Reference No 1 of 2008 (2008) 21 VR 111; [2008] VSCA 214; and DPP Reference No 1 of 2004 [2005] 12 VR 299.

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statutory appeal right exists. The review is made pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015. The applicant can seek one or more of the remedies set out in O 56 – for example, certiorari, mandamus or prohibition. Applications must also comply with Practice Direction No 9 of 2015, “Judicial Reviews and Appeals List”.654 Judicial review of decisions made in the County Court and the Supreme Court are dealt with in Chapter 7 of this book.

Application by DPP for retrial of person acquitted Scope of CPA Chapter 7A [6.1520] Chapter 7A of the CPA is headed “Limitations on rules relating to double jeopardy”. This makes it clear that the traditional rule of double jeopardy has been restricted or limited and no longer applies to the circumstances outlined in Ch 7A. Under Ch 7A the DPP can apply to the Court of Appeal for an order setting aside an acquittal and authorising the prosecution of the acquitted person. The grounds of such an application are: (a) fresh and compelling new evidence; or (b) the verdict of acquittal was “tainted”; or (c) the acquittal was the result of an administration of justice offence. All three grounds require some form of reliable and powerful new evidence to emerge post-trial. The scope of this new prosecution appeal right is clearly a central issue and raises many important questions in respect to which offences come within the new right, how strong any new evidence must be, and the protections to be afforded to the accused. Chapter 7A can have extraterritorial application in that under s 327A(1): “This chapter extends to an acquittal in a place outside Victoria if the law of that place permits the acquitted person to be retried.” Under s 327A(2) of the CPA, Ch 7A does not apply if a person is acquitted of the offence charged but is convicted of a lesser offence arising out of the same set of circumstances that gave rise to the charge. The limitation in s 327A(2) does not apply, however, where the acquittal (of the offence charged) was “tainted”.655 654 The heading of the application should be “Judicial Reviews and Appeals List” and the application should be supported by an affidavit. The most common form of initiating the application is an Originating Motion. The first hearing is before an Associate Judge in the list who can then fix a trial date. The decision of an Associate Judge can be appealed to a judge: see Practice Note No 4 of 2012. An example of such an appeal could be the decision of an Associate Judge not to grant an extension of time to seek the review: see, eg, Glass v Chief Examiner [2015] VSC 29. This type of appeal is a rehearing and the applicant must show some type of factual or legal error in the decision made by the Associate Judge. 655 CPA s 327A(3).

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Section 327S states: “This Chapter does not affect any right to appeal or review the acquittal of a person.” Thus, nothing in Ch 7A of the CPA permits the Crown to appeal the acquittal of a person. Chapter 7A does not give the DPP a right to appeal an acquittal. It only creates a right of the DPP to apply to the Court of Appeal for the removal of the “acquittal” on the court records and approval for the fresh prosecution. The following flowchart sets out the basic steps involved. Flowchart 6.2: DPP application for retrial [6.1530]

When can police reinvestigate? [6.1540] An application for a retrial would not arise unless the police and the prosecution were in receipt of new information that raised serious questions about the reliability of the acquittal. The new information could come from a previous witness, a new witness or, indeed, from the mouth of the person acquitted. The police may well wish to then undertake

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further investigations into the matter. Section 327E of the CPA sets out the circumstances in which the police may reinvestigate “an offence of which a person has previously been acquitted”.656 It is important to note here that the rules relating to reinvestigation only apply where the police wish to reinvestigate the offence of which the person was acquitted. Those rules do not apply to an investigation of an administration of justice offence committed at the trial which resulted in the acquittal. The general rule is that the police cannot reinvestigate the offence unless the DPP has given written authorisation.657 The term “reinvestigate” is defined in s 327E(1) of the CPA to mean: (a) the questioning and search of the person; or (b) the conduct of a forensic procedure on the person and the taking of the person’s fingerprints in accordance with the Crimes Act 1958; or (c) the search of property or premises owned or occupied by the person and the seizure of any thing found in or on the property or premises, including any vehicle; or (d) the use of surveillance devices in accordance with the Surveillance Devices Act 1999; or (e) the doing of anything authorised by a warrant issued under Part 2-5 of the Telecommunications (Interception and Access) Act 1979 of the Commonwealth.

Under CPA s 327E(2) before these reinvestigations can commence, the written authorisation of the DPP is required. It appears, however, that the police would be able to conduct investigations which do not involve any of the above, without authorisation from the DPP. This could include speaking to people, taking statements from people, consensual searches of property not owned by the person acquitted, and visual observations of the suspect (or “resuspect”). The most likely “trigger” for considering a retrial is a new witness, or a witness who gave evidence at the trial, approaching the police or the DPP with new information. These types of limited investigations are most unlikely to yield the type of new and substantial evidence required before the Victorian Court of Appeal would authorise a retrial, and thus the DPP authorisation is a critical step in the overall process of retrial. Even a statement from a witness would need to be supported by other evidence. Section 327E(2) of the CPA provides that the police are not permitted to conduct any of the above forms of reinvestigation unless the DPP has given written authorisation. Only the Chief Commissioner of Police, a Deputy Commissioner or an Assistant Commissioner can apply to the DPP.658 This is a rare example of a prosecution authority supervising and 656 CPA s 327E(2). 657 CPA s 327E(2). 658 CPA s 327E(3).

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authorising the work of criminal investigators. The fundamental principle in Australia is that there is a clear operational separation between the DPP and the investigators.659 Prosecutors are not generally involved in criminal investigations. However, the DPP is an appropriate authority to authorise reinvestigation in this context because one of the key issues is the forensic strength of any new evidence and the DPP is able to bring an independent and highly experienced perspective on this issue. DPP test for authorising reinvestigation [6.1550] The criteria for the DPP to apply in deciding whether to authorise a reinvestigation are set out in CPA s 327E(4): The DPP must not authorise a reinvestigation referred to in subsection (2) unless – (a) the DPP is satisfied that – (i) there is, or as a result of the reinvestigation there is likely to be, sufficient new evidence of the commission of the offence by a person to warrant the conduct of the reinvestigation; and (ii) it is in the public interest for the reinvestigation to proceed; and (b) in the DPP’s opinion, the previous acquittal would not be a bar to the trial of the person for an offence that may be charged as a result of the reinvestigation.

Section 327E(4)(b) means that the DPP is of the view that the statutory criteria for the Court of Appeal allowing a retrial would be satisfied.660 Reinvestigation without DPP authorisation [6.1560] In some circumstances it may not be reasonably practicable to obtain the authorisation of the DPP before conducting the reinvestigation. Under CPA s 327E(5): A police officer may apply to a senior police officer for written authorisation to conduct, or authorise the conduct of, a reinvestigation referred to in subsection (2) if the applicant reasonably believes that – (a) urgent action is required to prevent the reinvestigation being substantially and irrevocably prejudiced; and (b) it is not reasonably practicable in the circumstances to obtain the DPP’s authorisation before taking the action.

Under the CPA s 327E(6) the senior police officer can give the authorisation if satisfied that: (a) urgent action is required to prevent the reinvestigation being “substantially and irrevocably prejudiced”; and (b) it is not reasonably practicable in the circumstances to obtain the 659 See C Corns, Public Prosecutions in Australia: Law Policy and Practice (Lawbook Co., Sydney, 2014) at [7.150]. 660 The offence to be investigated must attract the “fresh and compelling” evidence exception: DPP Director’s Policy 37 at [85].The policy of the DPP is that evidence will only be sufficient to warrant a reinvestigation if it is “fresh” and “relevant”: DPP Director’s Policy 37 at [80].

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authorisation of the DPP before taking the action. An example might be the need to conduct a search of property in order to prevent key evidence being destroyed or removed. Under CPA s 327(7) a police officer may conduct a reinvestigation without the authorisation of the DPP or a senior police officer if the officer reasonably believes that: (a) urgent action is required to prevent the reinvestigation being substantially and irrevocably prejudiced; and (b) it is not reasonably practicable in the circumstances to obtain the authorisation of the DPP or a senior police officer before taking the action.

Under CPA s 327E(8) the DPP must be informed as soon as practicable of an authorisation given under CPAs 327(6) and any action taken or, of any action taken under CPAs 327(7), and at that stage the reinvestigation cannot continue without the authorisation of the DPP. Right of DPP to file new indictment [6.1570]

After the reinvestigation, under CPA s 327F:

(1) The DPP may file a direct indictment (in accordance with Chapter 5) charging an offence the prosecution of which may only proceed if the Court of Appeal gives authorisation under section 327O.661

Thus, no committal is held. In one sense the DPP would be free to file an indictment for the original offences of which the suspect was acquitted, but in the absence of CPA s 327F(1), there would be little point as the accused would argue (at the commencement of the new trial) either the bar of autrefois acquit or that the proceedings would be an abuse of process. At this point the original verdict of acquittal remains on the court record and it is this record which would prevent any retrial. Bail [6.1580] If the accused has been arrested and is in custody (in relation to the retrial offence) following filing of the indictment, then under s 327G of the CPA: it is to be presumed that the accused is to be released on bail, regardless of the offence charged, pending determination of the DPP’s application under section 327H or discontinuation of the prosecution under section 327K.

This presumption is at variance with the general operation of the Bail Act 1977 (Vic) whereby presumptions for and against bail being granted can 661 A direct indictment or “ex officio” indictment can also be filed where a magistrate declined to commit the accused for trial or the matter had previously been discontinued. The power of the DPP to file a direct indictment is found in CPA s 161. Under CPA s 327F(2), where the circumstances of the alleged offence come within s 327M(2), then the charge or charges in the indictment do not need to contain the level of detail specified in s 327M(2). For details of what would be included in such an indictment, see DPP Director’s Policy 37 at [49]. The DPP must personally sign the indictment.

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be based on the type of offence charged.662 The more liberal approach contained in CPA s 327G is probably based on the fact that the continuation of the proceedings (and the holding of a trial) is contingent on the approval of the Court of Appeal, and that approval may or may not be granted. The detention of the accused in custody in these circumstances requires a slightly different approach to the normal or ordinary circumstances when bail arises, particularly having regard to the operation of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic).663 Right of DPP to apply to Court of Appeal [6.1590] Under CPA s 327H(1), the DPP may apply to the Court of Appeal for an order: (a) setting aside the previous acquittal or removing the previous acquittal as a bar to the accused being tried on the direct indictment (as the case requires); and (b) authorising the continuation of the prosecution of the charge in the indictment.

Note the DPP is an “applicant”, not an appellant, and thus this procedure is not in a strict sense an “appeal”, but rather an application for a particular type of order. Note also that the Court of Appeal may make an order that the previous acquittal be “set aside” or the acquittal be “removed as a bar to the accused being tried on the direct indictment (as the case requires)”. The normal order of the Court of Appeal on an appeal against conviction is that the conviction be “set aside”.664 Where the acquittal is tainted, the appropriate order is to set aside the acquittal. The setting aside is on the basis that the acquittal is void or vitiated by an error (established by the conviction for the administration of justice offence), analogous to an order the result of a fraud. In the case of fresh evidence which undermines the accuracy or validity of the acquittal, the more appropriate order is to remove the acquittal as a bar to the prosecution because of the ruling of the High Court in R v Carroll665 that any subsequent prosecution for an offence (for example perjury), which has the effect of controverting the earlier acquittal, would be an abuse of process justifying a grant of a permanent stay. Under CPA s 327H(2), the application must specify whether it is based on: (a) a tainted acquittal; or (b) fresh and compelling evidence; or 662 For example, if the accused is charged with murder, bail shall be refused unless the accused can show “exceptional circumstances” why bail should be granted: Bail Act 1977 (Vic) s 13. 663 Specifically the right to liberty in s 21 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). 664 CPA s 277(1). 665 R v Carroll (2002) 213 CLR 635; [2002] HCA 55.

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(c) an administration of justice offence.666

One key rule in the Victorian scheme is that the DPP can only make one application for an order for a retrial.667 This is consistent with the general rule that an appellant can only make one appeal to an appellate court, but this limitation is particularly important given the nature of applications for a retrial of a person acquitted. Notice of application [6.1600] The application is commenced by filing a notice of application within 28 days of the filing of the direct indictment.668 The significance of such an application is reflected in the requirement that the DPP must personally sign the application. The policy of the DPP is that, prior to the application, consideration should be given to making an application under s 18(1)(c) of the Supreme Court Act 1986 (Vic) for an order prohibiting the publication of any report of the application.669 Service on respondent [6.1610] A copy of the notice of application must be served personally on the accused within seven days of the filing of the notice.670 Importantly, the accused is entitled to appear at the hearing of the application.671 Extension of time [6.1620] An extension of time for the filing or the serving of the notice can be granted under CPA s 327I(1).672 If the application for an extension of time is refused by the Registrar or a single judge, the DPP can appeal that refusal to the Court of Appeal.673 Discontinuation of proceedings [6.1630] Under s 327K of the CPA, if the DPP fails to make an application within 28 days of filing the direct indictment (or any other extended time granted), the DPP must discontinue the proceedings for a retrial within 14 days. This is designed to ensure finality and certainty in 666 The meaning of these terms is discussed below. 667 CPA s 327J. 668 CPA s 327H(4). 669 DPP Director’s Policy 37 at [62]. 670 CPA s 327H(6). 671 CPA s 327H(8). 672 The power to extend time can be exercised by the Court of Appeal (consisting of three or more Judges of Appeal), the Registrar of Criminal Appeals, or by a single Judge of Appeal constituting the Court of Appeal: CPA s 327I(1) and (2). 673 CPA s 327I(3).

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the overall process rather than having the possibility of such an application hanging over the head of the accused person indefinitely. Test to determine application based on “tainted acquittal” [6.1640] On an application by the DPP, the Court of Appeal can order, under CPA s 327L, the acquittal be set aside and that the prosecution of the charge in the direct indictment may continue (under CPA s 327O) if the court is satisfied that: (a) at the time the offence is alleged to have been committed, the offence was punishable by level 4 imprisonment (ie 15 years maximum) or more (however the penalty is described); and (b) the acquittal was tainted; and (c) it is likely that a new trial for the offence would be fair, having regard to – (i) the length of time since the offence is alleged to have been committed; and (ii) whether there has been a failure on the part of the police or the prosecution to act with reasonable diligence or expedition with respect to the making of the application; and (iii) any other matter the court considers relevant.

Pursuant to s 327D of the CPA, an acquittal is “tainted” if (at the trial of an offence a person is acquitted of the offence): (a) the person or another person has been convicted (whether or not in Victoria) of an administration of justice offence in connection with the trial resulting in the acquittal; and (b) it is more likely than not that, had it not been for the commission of the administration of justice offence, the person would have been convicted of the firstmentioned offence at trial.

An administration of justice offence means perjury, perverting the course of justice, or bribery of a public official, or substantially similar offences against the law of a place outside Victoria.674 The most difficult aspect of establishing that the acquittal was tainted would appear to be establishing that if the administration of justice offence had not been committed, the jury would have convicted the accused. This could be highly speculative and raises the same sort of issues for a court of appeal deciding if a substantial miscarriage of justice has occurred in an appeal against conviction. In determining if the new trial would be fair, the consideration of finality is not relevant.675 674 CPA s 327B. 675 DPP Director’s Policy 37 at [28], referring to R v A [2008] 2 All E R 898; [2008] EWCA Crim 2908. The fact that an accused might not have made a confession had they known it may result in a retrial does not make the trial unfair: R v Dunlop [2007] 1 WLR 1657; [2006] EWCA Crim 1354 at [45].

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Test to determine application based on fresh and compelling evidence [6.1650] On an application by the DPP, the Court of Appeal can order, under CPA s 327M, the previous acquittal be removed and that the prosecution of the charge in the direct indictment may continue (under CPA s 327O) if the court is satisfied that: (a) the offence is referred to in subsection (2);676 and (b) any circumstances referred to in subsection (2) in respect of the offence were present in the commission of the offence;677 and (c) there is fresh and compelling evidence against the person in relation to the offence; and (d) it is likely that a new trial for that offence would be fair, having regard to – (i) the length of time since the offence is alleged to have been committed; and (ii) whether there has been a failure on the part of the police or the prosecution to act with reasonable diligence or expedition with respect to the making of the application; and (iii) any other matter the court considers relevant.

Under CPA s 327C(1)(a) the new evidence will be “fresh” if: (i) it was not adduced at the trial of the offence; and (ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial.

Under CPA s 327C(1)(b) the new evidence will be “compelling” if: (i) it is reliable; and (ii) it is substantial; and (iii) it is highly probative in the context of the issues in dispute at the trial of the offence.

It is clear from decisions in the United Kingdom that the DPP must establish more than simply a case to answer. In R v G(G),678 the court stated: “It is only where there is compelling new evidence of guilt, of the kind which cannot realistically be disputed, that the exceptional step of quashing a conviction will be justified.”679 676 CPA s 327M(2) lists a range of offences. These include, eg, murder, conspiracy to commit murder, manslaughter, arson causing death, and rape or armed robbery if the offence involves torture, or causing really serious injury to the victim, or the offender threatened to cause death or really serious injury to the victim. 677 This refers to the circumstances in relation to rape and armed robbery described in the immediately preceding footnote. 678 R v G(G) [2009] EWCA Crim 1207. 679 R v G(G) [2009] EWCA Crim 1207 at [5]; cf R v Dobson [2011] 1 WLR 3230; [2011] EWCA Crim 1256.

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The policy of the Victorian DPP is that applications for a retrial will only be made in circumstances where the new evidence meets the description of reliable, substantial and highly probative.680 Test to determine application based on administration of justice offence [6.1660] Under CPA s 327N, on an application by the DPP the Court of Appeal can order (under CPA s 327O) the previous acquittal be removed and that the prosecution of the charge in the direct indictment may continue if the court is satisfied that: (a) at the time the offence is alleged to have been committed, the offence was an indictable offence; and (b) there is fresh evidence against the acquitted person of the commission of an administration of justice offence in relation to the previous acquittal; and (c) it is likely that a trial for the administration of justice offence would be fair having regard to – (i) the length of time since the administration of justice offence is alleged to have been committed; (ii) whether there has been a failure on the part of the police or the prosecution to act with reasonable diligence or expedition with respect to the making of the application; and (iii) any other matter the court considers relevant.

Powers of Court of Appeal on successful application [6.1670]

Section 327O of the CPA provides:

(1) On an application under s 327H, if the Court of Appeal is satisfied of the matters in section 327L or 327M, the Court may order that – (a) the previous acquittal of the accused of an offence charged in the direct indictment be set aside or removed as a bar to the accused being tried on the direct indictment (as the case requires); and (b) the prosecution of the charge may continue.

This section covers applications based on a tainted acquittal (CPAs 327L) and an application based on fresh and compelling evidence: CPAs 327M. Section 327O(2) then provides: (1) On an application under s 327H, if the Court of Appeal is satisfied of the matters in section 327N, the Court may order that – (a) the previous acquittal of the accused be removed as a bar to the accused being tried for the administration of justice offence alleged to have been committed in relation to the previous acquittal; and (b) the prosecution of the charge in the direct indictment may continue.

Under CPA s 327(3) the court may make any other orders it considers appropriate. Note that if the ground of the application is a tainted acquittal, the order of the Court of Appeal is to “set aside” the acquittal from the court record, but where the ground of the application is fresh 680 DPP Directors Policy 37, Retrials and Reinvestigations after Acquittal (29 November 2012) at [21].

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evidence of an administration of justice offence or fresh and compelling evidence relating to the original offence, the appropriate order is to “remove” the previous acquittal as a bar to the accused being tried on the direct indictment. In the former case the acquittal is set aside on the basis that it is void or vitiated with error. In the latter case the acquittal is removed in order to circumvent the decision of the High Court in R v Carroll681 that a subsequent prosecution (for, say, perjury) is not permitted to undermine or controvert an earlier acquittal (of, say, murder). By removing the order of acquittal from the court record, there is no earlier decision to controvert. An important protection for the accused is that if the Court of Appeal is not satisfied of any of the grounds of the application, or not satisfied that a fair trial could be held, the court must order that the charge (in the direct indictment) be permanently stayed.682 DPP election [6.1680] If the DPP satisfies the Court of Appeal of more than one of the above grounds of the application, the DPP must elect to prosecute on either the administration of justice offence or the offence of which the accused was acquitted.683 Prohibitions at new trial [6.1690] If the Court of Appeal does authorise a new trial, at the trial the prosecutor is not permitted to refer to the fact that the Court of Appeal was satisfied that: (a) there is fresh evidence, or fresh and compelling evidence, against the accused in relation to the offence charged; or (b) it is more likely than not that, had it not been for the commission of an administration of justice offence, the accused would have been convicted of the offence charged at the earlier trial.684

Clearly, such evidence would be highly prejudicial to the accused. Approach of Victorian DPP to retrial applications [6.1700] Chapter 7A of the CPA does not prescribe any test or criteria which the DPP must be satisfied of before commencing an application for a retrial. Accordingly, it is a matter of discretion for the individual DPP. However, the discretion which applies to ordinary prosecutions will also apply to applications for a retrial. Thus, the filing of the direct indictment would only occur if the DPP was satisfied there is sufficient evidence to 681 R v Carroll (2002) 213 CLR 635; [2002] HCA 55. 682 CPA s 327O(4). 683 CPA s 327P. 684 CPA s 327R.

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justify prosecuting the offence, there is a reasonable prospect of conviction, and it is in the public interest to prosecute the offence.685 The DPP also follows the policy of the United Kingdom DPP that, in cases of “fresh and compelling” evidence, an application will only be made where a conviction is “highly probable” and any acquittal by a jury at the new trial would appear to be perverse.686 Clearly, the DPP is required to consider the likelihood of the Court of Appeal granting the application, which in turn means considering the statutory criteria the Court of Appeal must apply in determining whether to grant the application. If the police request the DPP to make an application for a retrial, the police must provide a detailed brief setting out all the facts relied upon.687 Further sources Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) Ch 21.

Petition for mercy [6.1710] If a person has exhausted all their statutory rights to appeal a conviction or sentence, the general principle is that the person is precluded from appealing again under the CPA or any other Act, even if fresh or new evidence arises which casts doubt on the conviction or sentence.688 The Court of Appeal is considered to be functus officio and, in the absence of any statutory exception, the requirement of finality in criminal proceedings acts as a barrier to any further appeal to the Court of Appeal.689 In these circumstances, the only remaining avenue is for the aggrieved person to petition the Governor of Victoria for the exercise of

685 DPP Director’s Policy 37 at [32]. 686 DPP Director’s Policy 37 at [36]. 687 DPP Director’s Policy 37 at [40]. 688 R v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117 at [19]; R v Grierson (1937) 54 WN (NSW) 144a. The Victorian DPP has produced a policy regarding post-conviction disclosure duties in respect to fresh evidence: see DPP Director’s Policy 26, Attitude to Post-conviction Fresh Evidence, Disclosure and the Avoidance of Miscarriages of Justice (8 July 2012). 689 R v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117 at [11] and [40]–[41]; Censori v Adult Parole Board [2015] VSCA 254. In South Australia, a second or subsequent appeal can be permitted where there is fresh and compelling evidence: see Criminal Law Consolidation Act 1935 (SA) ss 353A; Magistrates Court Act 1991 (SA) s 43A. For discussion, see D Caruso and N Crawford, “The Executive Institution of Mercy in Australia: The Case and Model for Reform” (2014) 37(1) UNSWLJ 312. Similar legislation has also been passed in Tasmania: Criminal Code 1924 (Tas) Sch s 402A.

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the Royal prerogative of mercy (“Her Majesty’s mercy”) to grant a pardon.690 The petition for mercy is literally a “last resort” for the person convicted. Jurisdiction [6.1720] The prerogative power of the Crown to exercise mercy to a convicted person is one of the oldest prerogative powers and certainly predates statutory appeal rights. The power can be exercised in respect to either the conviction or the sentence. The prerogative power to exercise mercy is endowed to the Governor of Victoria, to whom a petition is addressed.691 The Governor receives advice from the Premier of Victoria, and the Premier receives advice from the Attorney-General as to whether the prerogative of mercy should be exercised in any particular case.692 The Attorney-General can instigate various types of inquiries and gather legal opinions from a range of sources.693 In practice, the AttorneyGeneral makes the decision and formally advises the Governor of the decision. No reasons have to be provided for the decision to grant or not grant a petition, and it appears that (in Victoria) the decision is not reviewable by the courts.694 Perhaps the crucial point about a petition for mercy is the following quote: “Mercy is not the subject of legal rights. It begins where legal rights end.”695 In other words, the petition for mercy operates separately and distinct from the criminal justice system. The decision to grant mercy is not the decision of a court, but rather of the Executive government. Procedure [6.1730] A petition can be based on purely legal grounds or, in cases where clemency is sought, non-legal grounds (such as compassion or other mitigating factors). A person can seek more than one petition. Under s 327(1) of the CPA: 690 The Royal pardon is recognised in ss 106 and 107 of the Sentencing Act 1991 (Vic), which sets out conditions applicable if a person is granted a pardon. The person can enter into an undertaking or be granted parole. 691 The power is derived from the Australia Act 1986 (Cth) s 7(2). 692 Australia Act 1986 (Cth) s 7(5); see also Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37 at [8]. 693 The Attorney-General will seek advice from his or her own department (Criminal Law Policy) and perhaps advice from the Solicitor-General. In Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37 at [8], the Attorney-General obtained a number of opinions from leading criminal counsel. 694 Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37 at [128]; Horwitz v Connor (1908) 6 CLR 38. 695 De Freitas v Benny [1976] AC 239 at 247 per Lord Diplock.

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If a person convicted on indictment or found unfit to stand trial or found not guilty because of mental impairment petitions for the exercise of Her Majesty’s mercy in relation to the conviction or finding, or the sentence imposed on the person, the Attorney-General – (a) may refer the whole of the case to the Court of Appeal; or (b) may refer any point of law arising in the case to the judges of the Trial division of the Supreme Court for their opinion.696

The Attorney-General is not required to refer the case to the Court of Appeal; it is purely a discretionary matter. Under the Supreme Court (Criminal Procedure) Rules 2008, if the AttorneyGeneral refers a case to the Court of Appeal under CPA s 327(1)(a), the petitioner is taken to be a person who has obtained leave to appeal.697 The petition stands in place of the Notice of Appeal.698 Powers of Court of Appeal [6.1740] If the Attorney-General refers the whole of the case to the Court of Appeal, the Court of Appeal must determine the matter as if it was an ordinary statutory appeal to the court by the convicted person.699 The Court of Appeal can quash the conviction, order a retrial or impose a new sentence. In Mallard v The Queen,700 the High Court held that on the referral of a petition, the appellate court must approach the case as it would an appeal based on fresh evidence, and must consider the whole of the evidence afresh. If the Attorney-General refers a question of law to the court, the judges of the Trial Division, or any three of them, must determine the question of law and provide the Attorney-General with their opinion.701 In deciding the point of law, the point may be considered in private.702 Any opinion provided by the Trial Division is only advisory and is not binding on the Attorney-General.703 The opinion of the Trial Division is only one factor the Attorney-General would take into account in deciding whether to uphold the petition for mercy. The procedure under CPA s 327 does not affect the operation of the common law prerogative of mercy.704 696 CPA s 327 is based upon the previous Crimes Act 1958 (Vic) s 584: see, eg, Re MJR (2000) 1 VR 119. 697 Supreme Court (Criminal Procedure) Rules 2008 r 2.26(1). 698 Supreme Court (Criminal Procedure) Rules 2008 r 2.26(2). 699 CPA s 327(2). It is not the petition that is referred to the Court of Appeal, but rather the case, and therefore the court either upholds or dismisses the appeal. 700 Mallard v The Queen (2003) WAR 1; [2003] WASCA 296. 701 CPA s 327(3). 702 Supreme Court (Criminal Procedure) Rules 2008 r 2.26(3). 703 Attorney-General’s Reference (No 1 of 1983) (1983) 2 VR 410. 704 CPA s 327(4). The continuation of the common law Royal prerogative of mercy is also recognised in the Sentencing Act 1991 (Vic) s 106 and the Crimes Act 1914 (Cth) s 21D.

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In deciding a case referred under CPA s 327, the Court of Appeal applies the ordinary principles that apply in an appeal.705 An example of a petition to the Attorney-General being referred to the Court of Appeal is Re GAM.706 In this case the petitioner had been convicted of sexual offences against his stepdaughter. After the petitioner had unsuccessfully appealed against his conviction, the complainant recanted the evidence she gave at trial. The petitioner then sought to obtain leave to appeal, but the court held that such an application was not open because the court was functus officio. However, the court encouraged the petitioner to petition the Attorney-General for the prerogative of mercy – which the petitioner did. The Attorney-General then referred the case to the Court of Appeal. In deciding how to deal with the referred case, the Court of Appeal in GAM stated that it must approach the case as if it was an ordinary appeal against conviction based on fresh evidence.707 “Fresh evidence” means evidence which was not available at the trial and could not have been obtained with reasonable diligence. The Court of Appeal held that the test to be applied by the Court of Appeal in determining whether to quash the conviction and order a new trial is that set out in Mickelberg v The Queen.708 Thus: It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.

Callaway J confirmed that the “significant possibility” formulation should be applied and that the test should be applied with caution where the fresh evidence consists of the recantation of evidence.709 After applying the above test to the fresh evidence, the court declined to quash the conviction.710 Applications for the prerogative of mercy are very rare and referral of cases to the Court of Appeal are even rarer. There have been eight such referrals in the last 40 years, and only one referral in the last five years.711 705 Ratten v The Queen (1974) 131 CLR 510. 706 Re GAM (2005) 12 VR 177; [2005] VSCA 234. 707 Re GAM (2005) 12 VR 177; [2005] VSCA 234 at [7], referring to, eg, Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 and Mallard v The Queen (2003) WAR 1; [2003] WASCA 296 at [9], [10]; see also Re Mathews [1973] VR 199 at 200. 708 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 at 273 (CLR). 709 Re GAM (2005) 12 VR 177; [2005] VSCA 234 at [27] and at [29], referring to Bryer v The Queen (1994) 75 Aust Crim R 456. 710 Other cases of a petition for mercy being referred to the Court of Appeal are: Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37; Censori v Adult Parole Board [2015] VSCA 254; Tognolini v The Queen [2015] VSCA 222. 711 Correspondence from the Victorian Attorney-General, The Hon Mr Martin Pakula MP. The assistance of Mr Pakula MP is greatly appreciated.

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Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.1610]ff. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Thomson Reuters, Sydney, 2014) at [17.155]. Judicial College of Victoria, Victorian Criminal Proceedings Manual (2016) at [20.5].

Chapter 7

Appeals from the Magistrates’ Court on a Question of Law and Judicial Reviews of Magistrates’ Court and County Court decisions [7.10] Introduction ......................................................................................................................... 367 [7.20] PART ONE: APPEALS ON A QUESTION OF LAW ................................................... 368 [7.20] Appeals on a question of law .......................................................................................... 368 [7.30] Final order ............................................................................................................................ 369 [7.40] Limits to jurisdiction .......................................................................................................... 369 [7.50] DPP acts for the informant ............................................................................................... 370 [7.60] Obtaining transcripts of summary proceedings ............................................................ 370 [7.70] Time limits ........................................................................................................................... 371 [7.80] Initial documentation ......................................................................................................... 371 [7.120] Commencement by filing ................................................................................................ 373 [7.130] Service ................................................................................................................................. 374 [7.210] Affidavit of service ............................................................................................................ 375 [7.220] Application for leave to appeal out of time ................................................................ 375 [7.230] Application for stay of the Magistrates’ Court orders ............................................... 376 [7.240] Bail pending appeal ......................................................................................................... 376 [7.250] PART TWO: JUDICIAL REVIEWS ................................................................................. 376 [7.250] Judicial reviews: Order 56 ............................................................................................... 376 [7.260] Error on the face of the record ....................................................................................... 377 [7.270] Nomination of court under review as defendant ....................................................... 377 [7.280] Review of interlocutory decisions of Magistrates’ Court .......................................... 378 [7.290] Review of County Court appeal proceedings ............................................................. 378 [7.300] Review of County Court trial orders and rulings ...................................................... 378 [7.310] Obtaining transcript of proceedings under review .................................................... 379 [7.350] Time limit for filing Order 56 originating motion ...................................................... 379 [7.360] Christmas/new year break ............................................................................................. 379 [7.370] Expiry date falls on weekend or holiday ..................................................................... 380 [7.380] Extension of time .............................................................................................................. 380 [7.390] Time limit for serving Order 56 originating motion .................................................. 380

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[7.400] Initial documentation ....................................................................................................... 381 [7.430] Commencement by filing ................................................................................................ 382 [7.440] Service of originating motion ......................................................................................... 382 [7.500] Notice of appearance ....................................................................................................... 384 [7.510] Affidavit of service ............................................................................................................ 384 [7.520] PART THREE: PROCEDURES FOR ALL CASES IN JUDICIAL REVIEWS AND APPEALS LIST .................................................................................................................. 384 [7.520] Procedures for all cases in Judicial Reviews and Appeals List ................................ 384 [7.530] Powers of an Associate Judge of the Supreme Court ................................................ 384 [7.540] Directions prescribed by the Supreme Court .............................................................. 385 [7.590] Resolution of appeal or judicial review by consent ................................................... 386 [7.600] Application for summary judgment ............................................................................. 386 [7.610] Appeal against order made by Associate Judge ......................................................... 387 [7.620] Further affidavit and affidavit in reply ......................................................................... 387 [7.630] Written outlines of submissions ..................................................................................... 387 [7.640] Court book and combined book of authorities ........................................................... 388 [7.650] Notice of trial and callover form ................................................................................... 388 [7.660] Proceeding discontinued ................................................................................................. 389 [7.670] Hearing and determination of appeal or judicial review .......................................... 389 [7.700] Costs .................................................................................................................................... 390 [7.710] Flow chart for cases in Judicial Reviews and Appeals List ...................................... 391 [7.720] PART FOUR: APPLICATION FOR LEAVE TO APPEAL TO COURT OF APPEAL .............................................................................................................................. 393 [7.720] Application for leave to appeal to Court of Appeal .................................................. 393 [7.730] New procedures ................................................................................................................ 394 [7.740] Leave to appeal ................................................................................................................. 394 [7.750] Time limits ......................................................................................................................... 395 [7.760] Initiating documents ........................................................................................................ 395 [7.770] Applications other than applications for leave to appeal ......................................... 395 [7.780] Service ................................................................................................................................. 395 [7.790] Written case in response .................................................................................................. 396 [7.800] Respondent does not intend to respond or contest application for leave to appeal .................................................................................................................................. 396 [7.810] Cross-applications for leave to appeal and notices of contention ........................... 396 [7.820] Registrar settles contents of application book ............................................................. 396 [7.830] Filing combined folder of authorities and agreed list of transcript references ..... 397 [7.860] Referral by Registrar of applications for leave to appeal ......................................... 397 [7.870] Consideration of applications by a single Judge of Appeal ..................................... 398 [7.880] Dismissal of application for leave to appeal with oral hearing ............................... 398 [7.890] Dismissal of application for leave to appeal without oral hearing ......................... 398 [7.900] Leave to appeal granted .................................................................................................. 399 [7.910] Powers of Court of Appeal ............................................................................................. 399 [7.920] Sample forms ..................................................................................................................... 399

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Introduction [7.10] There are two avenues of appeal or review to the Trial Division of the Supreme Court. The first is statute-based, namely an appeal on a question of law.1 The second avenue is based upon the Supreme Court’s original jurisdiction to review lower courts by way of certiorari, mandamus, prohibition or quo warranto, as prescribed by O 56.01 of the Supreme Court (General Civil Procedure) Rules 2015. The importance of this jurisdiction is often underestimated. A Supreme Court judge’s authority is subordinate only to the Court of Appeal and the High Court. The judgments produced in this jurisdiction are binding upon magistrates and County Court judges. Other Supreme Court judges will presume such judgments to be correct unless they can be persuaded otherwise under the principle of judicial comity. A considerable body of case law has developed in this jurisdiction which directly affects the day-to-day running of cases in the summary and trial jurisdictions. The procedural and paperwork requirements for commencement of appeals on a question of law and judicial reviews, and the general requirements for cases in the Supreme Court’s appeals and judicial reviews list, may appear laborious and labyrinthine to legal practitioners unfamiliar with this type of litigation, particularly those who primarily practise in the criminal law jurisdiction. This chapter aims to provide practitioners with the knowledge necessary to plot and maintain a straight course through unfamiliar waters. Appeals on a question of law are governed by O 3A of the Supreme Court (Criminal Procedure) Rules 2008,2 while judicial reviews are governed by O 56 of the Supreme Court (General Civil Procedure) Rules 2015 and other parts of those rules where applicable. Both types of review are included in the Supreme Court’s “Judicial Reviews and Appeals List” and both are subject to Practice Note No 9 of 2015.3 Due to this commonality of procedure, these two avenues of review are dealt with in tandem in this chapter. Although judicial review is available for decisions made by bodies other than courts, this chapter focuses on reviews of decisions made by the Magistrates’ Court, the Children’s Court and the County Court.4 1 For the Magistrates’ Court the right to appeal on a question of law is found in the Criminal Procedure Act 2009 (Vic) s 272 and for the Children’s Court in the Children, Youth and Families Act 2005 (Vic) s 430P. 2 Order 3A of the Supreme Court (Criminal Procedure) Rules 2008 applies to appeals from the Magistrates’ Court and the Children’s Court: see O 3A.01. These rules supersede rr 58.06 and 58.14 of the Supreme Court (General Civil Procedure) Rules 2015 which continue to apply to question of law appeals in respect of certain types of non-criminal proceedings. 3 This Practice Note supplanted Practice Note No 4 of 2009, which it closely resembles. In early 2017, the current Practice Note will be supplanted by an updated revision. 4 For examples of judicial review in respect to non-court bodies, see WBM v Chief Commissioner of Police [2012] VSCA 159.

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[7.20]

Because question of law appeals and judicial reviews are conducted as civil proceedings they are subject to the costs provisions of O 63 of the Supreme Court (General Civil Procedure) Rules 2015. The successful party can claim their legal costs from the unsuccessful party. The court retains a discretion,5 but an application for a costs order by the successful party is normally granted.6 If the proceeding is discontinued, the appellant/ plaintiff remains liable for the responding party’s costs up to the time of discontinuance unless the court otherwise orders.7 An order can be made against a practitioner personally if the proceeding is frivolous, vexatious, prolonged or otherwise in breach of the overarching obligations prescribed by Pt 2.3 of the Civil Procedure Act 2010.8 Part One of this chapter sets out the procedure for commencing an appeal on a question of law while Part Two explains the procedure for commencing judicial reviews. Part Three sets out the procedure for all cases in the Supreme Court Judicial Appeals and Reviews List and Part Four explains the procedure for a further appeal to the Court of Appeal in its civil jurisdiction.

PART ONE: APPEALS ON A QUESTION OF LAW Appeals on a question of law [7.20] Section 272(1) of the Criminal Procedure Act 2009 (Vic) (hereafter “CPA”) provides: A party to a criminal proceeding9 (other than a committal proceeding) in the Magistrates’ Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates’ Court in that proceeding.10

Note: This is an unconditional right as the party does not need to obtain leave of the Supreme Court. If a person engages the right of appeal under CPA s 272(1), that party “abandons finally and conclusively” any right under the CPA or any other 5 Rule 63.13 of the Supreme Court (General Civil Procedure) Rules 2015. 6 See [7.700]. 7 See [7.660]. 8 Civil Procedure Act 2010 s 29. 9 Criminal proceedings include decisions made by a judicial registrar of the Magistrates’ Court: Rodger v Wojcik (2014) 67 MVR 223. The issue of whether an appeal on a question of law could be brought in respect of the decision of a judicial registrar was not raised in two contemporaneous CPA s 272 appeals against orders by a judicial registrar heard and determined by Dixon J in McWhirter v Dunlop; Tran v Harris [2013] VSC 697. These appeals were brought to preserve a forensic advantage that would have been lost in a de novo hearing pursuant to s 16K of the Magistrates’ Court Act 1989 or s 254 of the CPA. 10 Children, Youth and Families Act 2005 (Vic) s 430P provides: “A party to a proceeding (other than a committal proceeding) in the Criminal Division of the Children’s Court may appeal to the Supreme Court on a question of law, from a final order of the Children’s Court in that proceeding.”

[7.40]

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Act to appeal to the County Court in relation to the proceedings.11 This is designed to prevent “double-dipping” and to bring finality to proceedings. In contrast to the appeal rights created by Pt 6.1 of the CPA and Pt 5.4 Div 1 of the Children, Youth and Families Act 2005 (Vic) (hereafter “CYFA”), the informant has the same right of appeal as an accused person against any final order. Therefore, the informant has a right of appeal against the dismissal of a charge and against a sentencing order. However, CPA s 272(2) and CYFA s 430P(2) provide: “If an informant who is a police officer wishes to appeal under subsection (1), the appeal may be brought only by the DPP on behalf of the informant.” The practical effect of this provision is that the Director of Public Prosecutions (hereafter “DPP”) has the final say as to whether such an appeal may be brought.

Final order [7.30] An appeal on a question of law is only available against a “final order” of the Magistrates’ Court or the Children’s Court. A final order is an order which finally determines the rights of the parties, as distinct from an interlocutory order.12 A final order includes conviction, dismissal of a charge and the imposition of a penalty. If a charge is dismissed, this is a final order, but if a charge is “struck out”, this is not a final order and can be appealed under CPA s 272 (or CYFA s 430P).13 The “striking out” of a charge may be reviewable by way of an O 56 originating motion seeking relief in the nature of certiorari. If there is uncertainty as to whether the order is final or interlocutory in nature, it is recommended that both types of proceedings (that is, a question of law appeal and judicial review) be instituted and run in tandem until such time as that issue is resolved.

Limits to jurisdiction [7.40] Whereas s 254 of the CPA states that its jurisdiction applies only to criminal proceedings conducted under CPA Pt 3.3, CPA s 272 provides a right of review for a criminal proceeding in the Magistrates’ Court (other than a committal proceeding). However, a criminal proceeding under the CPA is commenced when a charge is filed pursuant to CPA s 6(1)(a). The Supreme Court has ruled that s 272 of the CPA does not provide any right of appeal against orders made pursuant to s 160 of the Infringements Act 2006 (Vic) for imprisonment in default of the payment of 11 CPA s 273. 12 Kinex Exploration v Tasco Pty Ltd (1995) 2 VR 318 at 320, discussed in DPP v Sabransky [2002] VSC 143. 13 DPP v Sabransky [2002] VSC 143; DPP v Moore (2003) VR 430. The striking out of a charge does not terminate the proceedings but is simply a direction to remove the charge from the list of matters for hearing: Quick v Creanor; Taylor v Wilkins [2015] VSCA 273 at [15].

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[7.50]

fines, as it was not a criminal proceeding for the purposes of the CPA.14 The Court of Appeal has confirmed that a magistrate’s orders pursuant to s 160 of the Infringements Act 2006 can be reviewed by way of judicial review.15 However, an application for revocation of an infringement notice which has been referred to a magistrate for determination pursuant to s 72 of the Infringements Act 2006 (Vic) is treated as a criminal proceeding pursuant to Pt 3.3 of the CPA and is appellable pursuant to s 254 of the CPA.

DPP acts for the informant [7.50] As earlier stated (at [7.20]), if an informant who is a member of the police force wishes to appeal, the appeal may be brought only by the DPP on behalf of the informant. When the DPP acts for an informant, the DPP is nominated as the appellant on behalf of the informant. The DPP must be named as the appellant in the title of the proceeding – that is, “The Director of Public Prosecutions (on behalf of [informant’s name] v Respondent”.16 As a matter of practice, the affidavit filed by the DPP in support of the appeal will include a statement that the informant wishes to appeal. Failure to include such a statement does not render the proceeding incompetent.17 Where the respondent to an appeal brought by an accused is a member of the Victoria Police, it is the policy of the DPP to act for that respondent. Therefore, the Office of Public Prosecutions will usually accept service on behalf of a police officer who is the respondent if arranged beforehand: see [7.150].

Obtaining transcripts of summary proceedings [7.60] Proceedings in both the Magistrates’ Court and the Children’s Court are electronically recorded. Application can be made to the Magistrates’ Court registry for the release of a copy of the recording of the hearing or hearings concerned. The recordings will be provided for a fee which, at the time of writing, is $55. Thereafter, the released recording can be transcribed at the party’s expense. It is recommended that the transcript be typed up by an accredited legal transcription service. As the recording of the proceedings was not conducted by an authorised transcription service, the typed transcript will not be admissible prima facie pursuant to the Evidence (Miscellaneous Provisions) Act 1958 s 135. Instead the transcript will have to be proven by way of an affidavit sworn by a person who was present at the hearing. This can be done by exhibiting a disc copy of the recording 14 Fernando v Port Phillip City Council [2011] VSC 592. 15 Victoria Police Toll Enforcement v Taha [2013] VSCA 37. 16 Stiles v Lamont (unreported, Vic Sup Ct, 3 March 1992). 17 Luff v DPP (2003) 39 MVR 277 at 281–284.

[7.90]

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and attaching the typed transcript to the affidavit in support of the appeal if that affidavit is sworn by a person who was present at the hearing.

Time limits [7.70] The time limit for filing the notice of appeal is 28 days after the day of the order that is the subject of complaint.18 The notice of appeal must be served upon the respondent within seven days after filing.19 A notice of appeal filed out of time is treated as an application for leave to appeal.20 Leave to appeal can be granted by an Associate judge upon (or after) the return of the summons for directions.21 Leave to appeal will be granted if the court is satisfied that there are “exceptional circumstances” and no other party will be “materially prejudiced because of the delay”.22 If the 28th day after the final order (or the seventh day after filing) falls on a public holiday, the Interpretation of Legislation Act 1984 (Vic) s 44(3) operates to extend the time limit to the next working day.23 Although the legislation also allows seven days’ grace for the filing of the affidavit in support and the summons for directions,24 it is more efficient and expeditious to file all three documents at the same time and thereafter to serve all the initiatory documents on the respondent at the same time.

Initial documentation [7.80] The documents that must be prepared and filed to get the proceedings under way are the notice of appeal, the affidavit in support and the summons for directions. Notice of Appeal [7.90] The rules do not prescribe a form for the notice of appeal. Instead, O 3A.03(1) of the Supreme Court (Criminal Procedure) Rules 2008 stipulates that the notice should: (a) be in writing signed by the appellant or the appellant’s solicitor; (b) set out or state – (i) the order which is the subject of appeal; 18 CPA s 272(3); CYFA s 430P(4). 19 CPA s 272(4); CYFA s 430P(4). 20 CPA s 272(7)(8); CYFA s 430P(7) and (8). 21 Supreme Court (Criminal Procedure) Rules 2008, rr 3A.05(1) and 3A.06. 22 CPA s 272(8). 23 The applicability of s 44(3) of the Interpretation of Legislation Act 1984 to the commencement of a DPP appeal against sentence under s 567A of the Crimes Act 1958 (now CPA s 287) was confirmed by the Court of Appeal in DPP v Papworth [2005] VSCA 88. The authors of this book believe that this decision is equally applicable to appeals pursuant to CPA s 272(3) and CYFA s 430P. 24 Supreme Court (Criminal Procedure) Rules 2008, rr 3A.04 and 3A.05.

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[7.100]

(ii) whether the appeal is from the whole or part only of the order and, if so, what part;25 (iii) the question of law upon which the appeal is brought; (iv) concisely the grounds of appeal; (v) the order sought in place of that from which the appeal is brought; and (c) at its end, name all the persons on whom it is proposed to serve the notice of appeal.

A sample form of notice of appeal is provided at [7.930]. Affidavit in support [7.100] An affidavit in support should be sworn by a person who was present throughout the hearing.26 Usually the affidavit in support is sworn by the either the legal practitioner appearing or the appellant. When the matter is an appeal brought by the DPP, the police prosecutor who appeared, or the informant, will swear the affidavit in support. The affidavit and the exhibits should be limited to what is necessary for the proper hearing and determination of the proceeding. This is usually limited to what occurred at the hearing under review. Therefore, it is confined to the evidence and submissions that were before the court concerned,27 along with the orders and rulings made by the magistrate. That affidavit should exhibit the following items: • copy of the charge(s); • DVD recording of the hearing; • transcript of the hearing; • exhibits tendered at the hearing, for example a Certificate of Analysis of Breath, photographs, record of interview etc; and • certified extracts of the final orders. If a transcript of the hearing or other relevant materials cannot be obtained within the time required for filing the affidavit in support, the appellant should file an interim affidavit which outlines the alleged facts of the charges and what occurred in the Magistrates’ Court hearing, and exhibit the certified extracts and the other requisite materials if available. That affidavit should foreshadow the filing of a further affidavit exhibiting the transcript. 25 The distinction between a “question of law” and a “ground of appeal” for the purpose of drafting a notice of appeal is not clear. One approach in drafting is to express the grounds in interrogative form under the heading “Questions of Law” and then repeat them in a non-interrogative form under the heading “Grounds of Appeal”. Another approach, which would avoid repetition, is to use a combined heading, eg “Questions of Law/Grounds of Appeal”. 26 Supreme Court (Criminal Procedure) Rules 2008 r 3A.04. 27 Practice Note No 9 of 2015 cl 4.2.

[7.120]

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Summons for directions [7.110] Within seven days after filing the notice of appeal the appellant shall apply on summons to an Associate Judge for directions.28 The summons for directions is based upon the general Form 46A summons save that it should have the heading “Summons for Directions” and be returnable before the Associate judge in the Associate Judge’s Practice Court (Court No 2). A suggested form of words for the orders sought is: 1. Any further affidavits, answering affidavits and outlines of submissions upon which the parties desire to rely, be filed and served by such times and dates as the Court sees fit. 2. The Appeal be referred to the Listing Associate for listing for trial at such time and date as the Court sees fit. 3. The costs of the application be reserved. 4. The orders made in Magistrates’ Court Case No [insert number] [insert date] be stayed pending the determination of this appeal. 5. Such further or other orders as this Honourable Court sees fit.

A sample form of summons for directions is provided at [7.940].

Commencement by filing [7.120] The initiating documents are filed at the Supreme Court Registry (currently located on the Second Floor at 436 Lonsdale Street, Melbourne). The notice of appeal and the summons should be printed out in quadruplicate, or more if there is more than one respondent. The registry clerk will retain one copy each of the notice of appeal and the summons for the court file and will seal the remaining copies, which are handed back for service upon the respondents and the Magistrates’ Court. It is recommended that a spare sealed copy of each document is retained on file for service use if a service copy goes astray. The summons must be accompanied by a Court 2 Applications Form, which can be printed off from the Supreme Court website: see http://www.supremecourt.vic.gov.au. The form will also be available at the registry and can be filled in while the clerk is processing the documents. The date of the directions hearing will be written on the summons by the registry clerk. Only the original affidavit has to be brought in for filing. The exhibits are not retained on the court file. Instead, the original exhibits are to be made available at the hearing of the appeal. Please note that copies of the exhibits should be served on the other parties, along with copies of the affidavit, and provided to the court at or prior to the first directions hearing. As these proceedings are reviews of criminal proceedings, they are exempt from filing fees and hearing fees. 28 Supreme Court (Criminal Procedure) Rules 2008 r 3A.05.

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[7.130]

It is important to remember that, unlike the other forms of criminal appeal available to an accused, the Supreme Court does not separately notify the Magistrates’ Court, the Office of Public Prosecutions or the informant of the appeal proceedings. If the respondent is the informant, mere filing does not in any way mean that the informant has been officially notified. The informant will not take any steps to preserve exhibits or defer execution of any sentence-related orders until he or she is served or otherwise properly notified of the appeal proceedings.

Service [7.130] The methods of service for appeals on a question of law are set out in CPA ss 391 and 392. The following paragraphs deal with service in most of the situations in which question of law appeals are brought. Appeal by an accused – service upon the informant [7.140] When an accused is appealing against a final order of the Magistrates’ Court (or Children’s Court), the respondent is the informant for the original charge. The methods of service upon an informant are set out in the CPA s 392(2). An accused can effect service by: personally handing the documents to the informant; leaving the documents at the business address on the original charge sheet; or by email or fax if those details are provided on the charge sheet.29 Service can also be effected by personally serving the person who represented the informant at the hearing of the charge, or “in any other manner agreed between the Informant and the Respondent”.30 OPP may accept service on behalf of Victoria Police informant [7.150] If the informant is a member of the Victoria Police force, the Office of Public Prosecutions can agree to accept service on behalf of the informant. To obtain such agreement, the appellant or his legal practitioner should contact the Appeals section of the Office of Public Prosecutions beforehand. The agreement should be confirmed by email. Non-police prosecuting agency [7.160] If the informant is acting on behalf of a prosecuting agency, such as the Roads Corporation, a municipal council or Worksafe Victoria, the business address provided on the charge sheet may be the business address of the agency concerned. If not, it is suggested that the agency be contacted for the purpose of establishing whether service will be accepted by the agency at its principal place of business. Appeal by or on behalf of informant [7.170] If the appeal is brought by or on behalf of an informant, the notice of appeal must be served personally upon the accused. However, a 29 CPA s 18 provides that an informant must nominate a business address; that information can be provided on the charge sheet. 30 CPA s 392(2)(e).

[7.220]

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legal practitioner acting for the accused can be instructed (by the accused) to accept service on behalf of the accused. Personal service upon accused [7.180] If the appeal is brought by or on behalf of an informant, the notice of appeal is served personally upon the respondent (the accused) in accordance with CPA s 391.31 Under CPA s 391(2), personal service can be effected by: (a) giving the documents to the respondent; (b) putting the documents down in the presence of the respondent and telling the respondent the nature of the document; or (c) leaving the documents with a person aged over 16 years at the respondent’s last known or usual place of residence. Service upon accused’s legal representative [7.190] If a legal practitioner has given written notice of acting for an accused to the informant or the prosecution and is instructed to accept personal service of all documents on behalf of the accused, then the notice of appeal can be served by the means set out above at [7.180] or by way of registered post to the legal practitioner via a document exchange service.32 Service upon Magistrates’ Court [7.200] A copy of the notice of appeal is to be delivered to the registrar of the court that made the order the subject of appeal.33 As a matter of courtesy, the summons and affidavit in support should also be served upon the Magistrates’ Court. The usual practice of the Magistrates’ Court is that the Deputy Chief Magistrate sends a letter to the Supreme Court confirming that the Magistrates’ Court has been served and that they will abide by the decision of the court.34

Affidavit of service [7.210] An affidavit of service has to be filed unless the respondent files a notice of appearance, or it is confirmed that the respondent or his legal practitioner will attend the directions hearing.

Application for leave to appeal out of time [7.220] If an appellant has filed the notice of appeal out of time, the appellant should include in the summons for directions a proposed order granting leave to appeal out of time and file and serve an affidavit 31 CPA s 272(5)(a). 32 CPA s 391(4). 33 Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 3A.03(2)(a). 34 In that letter, the Magistrates’ Court will reserve its right to be heard if the Supreme Court is considering making an order requiring the Magistrates’ Court to pay costs in the proceeding.

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[7.230]

deposing to the reasons for delay and other relevant matters. This evidence can be included in the affidavit in support or provided in a separate affidavit.

Application for stay of the Magistrates’ Court orders [7.230] The commencement of an appeal on a question of law does not automatically operate as a stay of the order that is the subject of the appeal proceedings.35 Instead, application for a stay must be made to the Supreme Court.36 An appellant who is the accused will usually wish to seek a stay of any sentencing orders made by the Magistrates’ Court including fines and driver’s licence suspension orders. To do so, the appellant should include in the summons for directions a proposed order for a stay and provide evidence by way of affidavit in support of the application, unless the respondent consents to the granting of a stay.

Bail pending appeal [7.240] If an appellant has been imprisoned by the orders being appealed, the legislation empowering the Supreme Court to order a stay of the magistrate’s orders also provides the power to grant bail.37 The application for bail will have to be made to a judge of the Supreme Court. An Associate judge does not have the authority to hear and determine any proceeding affecting the liberty of the subject.38 Once the documents have been filed and served, the appeal will be in the Judicial Reviews and Appeals List of the Supreme Court. Part Three of this chapter explains the procedure from that stage on.

PART TWO: JUDICIAL REVIEWS Judicial reviews: Order 56 [7.250] The old forms of judicial review by prerogative writs for certiorari, mandamus or prohibition have been abrogated. In their place, O 56 of the Supreme Court (General Civil Procedure) Rules 2015 provides for the filing of an originating motion in Form 5G seeking judicial review against “a judgment, order, conviction, determination or proceeding”.39 The Supreme Court can make orders for relief in the nature of certiorari, mandamus, prohibition or quo warranto. For further details concerning the nature of each of these remedies, see Chapter 1 at [1.50]–[1.90]. 35 CPA s 272(6). 36 CPA s 272(11). 37 For bail in general, see G Hampel, M Gurvich and S Bruhn, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) Ch 7 (for bail pending appeal to the Supreme Court). 38 Supreme Court (General Civil Procedure) Rules 2015 r 77.02(3)(c). 39 Supreme Court (General Civil Procedure) Rules 2015 rr 56.01(2) and 56.02(2). Judicial review is not, however, available in respect to committal proceedings: Potter v Tural [2000] VSCA 227.

[7.270]

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On hearing and determining the review, the Supreme Court judge decides which of the available remedies is the most appropriate in the particular case. Judicial review is used to review the orders or actions of a judicial officer. The review is a civil procedure and the person bringing the review is the plaintiff; the other parties are the defendants. Judicial review is available in respect to decisions of a magistrate and the decisions of a County Court judge hearing an appeal from the Magistrates’ Court.40 To succeed with judicial review the plaintiff must establish one or more of the following grounds: • absence of jurisdiction; or • error on the face of the record; or • contravention of natural justice; or • collusion or fraud.41 In summary, judicial review is concerned with errors in the judicial process rather than the ultimate outcome (such as a conviction or sentence). The usual disposition of a successful judicial review is remittal of the charges for hearing and determination according to the correct process and principles.

Error on the face of the record [7.260] The concept of “on the face of the record” is broadened in Victoria by the Administrative Law Act 1978 s 10, which provides that: any statement by a tribunal or inferior court whether made orally or in writing … of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.

Any written reasons for decision given by a magistrate or County Court judge or a transcription of the reasons given orally will thus form part of the record.

Nomination of court under review as defendant [7.270] Pursuant to r 56.01(2) of the Supreme Court (General Civil Procedure) Rules 2015 the court under review is nominated as a second or further defendant and the judicial officer under review is not specifically named.42 The court named as a defendant will not take an active part in the proceedings.43 The usual practice is that the court named as a defendant 40 See, eg, Saric v Elliot [2013] VSC 509; Harding v County Court of Victoria [2013] VSCA 711. 41 Frugtniet v Victoria Legal Aid (unreported, Vic Sup Ct, Hedigan J, 11 September 1997). The leading authorities concerning the limits of judicial review include Craig v South Australia (1995) 184 CLR 163 and DPP v His Honour Judge Fricke [1993] 1 VR 369. 42 Supreme Court (General Civil Procedure) Rules 2015 r 56.01(3). 43 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

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[7.280]

will send a letter to the Supreme Court stating that the court under review does not intend to take an active role and will abide by the decision of the Supreme Court.

Review of interlocutory decisions of Magistrates’ Court [7.280] Judicial review can be used to review an interlocutory decision of the Magistrates’ Court or the County Court where the decision infringes jurisdiction and is not amenable to other forms of appeal. Examples include: • if a magistrate44 hears and determines charges which are outside the Magistrates’ Court’s jurisdiction (for example, hearing and determining a charge for an indictable offence which is not triable summarily), an accused or the prosecution can use this procedure to seek orders quashing the conviction and sentence and remitting the charge to the Magistrates’ Court for committal proceedings; • if a magistrate or a judge ordered the permanent stay of a charge or indictment in circumstances in which it was not open for the judge to do so, the prosecution may seek orders setting aside the stay and directing that the charge or indictment be heard and determined according to law.

Review of County Court appeal proceedings [7.290] Judicial review is the only remaining avenue for review available in respect of CPA s 254 County Court appeal decisions, save for the exception provided by CPA s 283, which provides a right of appeal against a sentence of imprisonment imposed by the County Court where the appellant had not been sentenced to be imprisoned by the Magistrates’ Court: see Chapter 4 at [4.270]. Accordingly, there are regular judicial reviews of County Court appeal proceedings despite the restricted nature of this type of review.

Review of County Court trial orders and rulings [7.300] A judgment, order, conviction, determination or proceeding by a County Court judge in the criminal trial jurisdiction can also be reviewed pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015. This is subject to the principle against fragmentation of proceedings as enunciated by the High Court in R v Iorlano.45 The right to seek leave to appeal an “interlocutory decision” in the Court of Appeal pursuant to CPA s 295 obviates the need to pursue judicial review in most cases. Judicial review is most likely to be used where a 44 It follows that the decision of a judicial registrar of the Magistrates’ Court is reviewable in this manner, but it is more expeditious and far less costly to utilise the right of appeal to a magistrate as provided by s 16K of the Magistrates’ Court Act 1989 (Vic). 45 R v Iorlano (1983) 151 CLR 678. It was held per curiam that it is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on questions of admissibility of evidence.

[7.360]

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County Court trial is permanently stayed or is compromised at the outset and the County Court fails to take steps to rectify the situation.

Obtaining transcript of proceedings under review [7.310] Unless the error to be corrected is clear from the formal orders of the court, it will be necessary for the plaintiff to obtain a transcript of the proceedings. Transcript of Magistrates’ Court proceedings [7.320] If the proceeding to be reviewed is a summary proceeding in the Magistrates’ Court or the Children’s Court, for the process of obtaining a recording and subsequently procuring the transcript of proceedings, see above at [7.60]. Transcript of County Court appeal proceedings [7.330] County Court appeal proceedings are electronically recorded. The usual method of requesting a recording is to write to the County Court judge’s Associate. It is a matter for the County Court judge as to whether such recordings are released to a party or parties for transcription at the requesting party’s expense (as occurs with Magistrates’ Court recordings). There is no Practice Direction or rule which stipulates what should be done. Therefore, there are various ways in which a judge may respond to such a request. A County Court judge may direct that an electronic copy of the recording be released to the requesting party; or the judge may direct that the recording be transcribed by an accredited or authorised transcript service and that the typed transcript be provided to the parties with the cost of transcription paid by the requesting party. Transcript of County Court trial proceedings [7.340] If the proposed judicial review arises from an order or determination in a County Court trial proceeding, certified transcripts of the proceedings are provided to the parties by the Victorian Government Reporting Service. If they are not provided for the particular hearing, the County Court judge can direct that a certified transcript be provided.

Time limit for filing Order 56 originating motion [7.350] The time limit for filing the originating motion is 60 days “after the date when grounds for the grant of relief or remedy claimed first arose”.46

Christmas/New Year break [7.360] The time limit of 60 days is fixed by the Supreme Court rules and not by statute. Therefore, the calculation of time is made in accordance with O 3 of the Supreme Court (General Civil Procedure) Rules 46 Supreme Court (General Civil Procedure) Rules 2015 r 56.02(1).

380

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[7.370]

2015. In particular, a plaintiff can rely upon r 3.04 which excludes from the calculation of time the period in every year between 24 December and 9 January.

Expiry date falls on weekend or holiday [7.370] If the 60th day after the judgment, order, conviction, determination or proceeding under review falls on a weekend or a public holiday, the Interpretation of Legislation Act 1984 s 44(3) operates to extend the time limit to the next working day.47

Extension of time [7.380] The Supreme Court has the power to extend time for commencing proceedings if there are “special circumstances”.48 In Lazarevic v Victoria Police49 Forrest J quoted with approval Associate Justice Derham’s following summation of the law: The authorities establish that: a) The rule requires the Court to be objectively satisfied that special circumstances exist; b) The existence of special circumstances is to be determined by reference to all the circumstances of a case; c) The factors relevant to the exercise of the discretion under Rule 56.03(2) [sic] include, but are not limited to: i) the period of the delay; ii) the reason for the delay; iii) whether the plaintiff has an arguable case; iv) the justice to both parties, including the prejudice to the parties; and v) the public interest in the finality of litigation.50

Time limit for serving Order 56 originating motion [7.390] The recent amendments to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 require the inclusion of a return date for the originating motion. Therefore, service has to be effected before the return date provided by the court. If service cannot be effected by that time, it will be necessary on or before the return date to apply to an Associate judge, an Associate judge’s Associate or the Prothonotary to amend the 47 The applicability of the Interpretation of Legislation Act 1984 s 44(3) to the commencement of a DPP appeal under the Crimes Act 1958 s 567A (now CPA s 287) was considered by the Court of Appeal in DPP v Papworth [2005] VSCA 88. The authors of this book believe that this decision is equally applicable to appeals pursuant to CPA s 272 and CYFA s 430P, and judicial reviews pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015. 48 Supreme Court (General Civil Procedure) Rules 2015 r 56.02(3). 49 Lazarevic v Victoria Police [2015] VSC 13. 50 Lazarevic v Victoria Police [2015] VSC 13 at [36].

[7.420]

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return date to another day.51 Any further amendment of the return date thereafter requires an order by a judge or an Associate judge.52

Initial documentation [7.400] The documents that must be prepared and filed to get the proceedings under way are the originating motion in Form 5G and an affidavit in support. Originating motion in Form 5G [7.410] An O 56 judicial review is commenced by the filing of an originating motion in Form 5G.53 This form obviates the need for separate summons by requiring the inclusion of a return date by the registry at the time of filing. In a manner similar to the notice of appeal on a question of law (CPA s 272), the originating motion must identify the judgment, order, conviction, determination or proceeding to be reviewed along with the grounds for review and the relief or remedy sought. It should include the full set of orders sought from the court, including an extension of time if that has to be sought. A sample form of originating motion in Form 5G is provided at [7.950]. Affidavit in support [7.420] An affidavit in support of an originating motion should be sworn by a person who was present throughout the relevant hearing. Usually the affidavit in support is sworn either by the legal practitioner who appeared at the hearing under review or by the plaintiff. The affidavit must set out the acts, facts, matters and circumstances relied upon in support of the plaintiff’s claim. It should also include as exhibits copies of the judgment, order, conviction, determination or decision in respect of which relief is sought as well as a copy of any reasons for decision given thereto.54 The evidentiary material contained or exhibited to affidavit in support is to be confined to the evidence and submissions that were before the court concerned55 along with the orders and rulings made by the court under review. The affidavit in support should exhibit the following items if they are available: • copy of the charge or charges; • DVD recording of the hearing; • transcript of the hearing; • exhibits tendered at the hearing – for example Certificate of Analysis of Breath, photographs, record of interview etc; and • certified extracts or records of order of the orders or directions under review. 51 Supreme Court (General Civil Procedure) Rules 2015 r 56.01(7) and (8). 52 Supreme Court (General Civil Procedure) Rules 2015 r 56.01(9). 53 Supreme Court (General Civil Procedure) Rules 2015 r 56.01(2). 54 Supreme Court (General Civil Procedure) Rules 2015 r 56.01(5) and (5.1). 55 Practice Note No 9 of 2015 cl 4.2.

382

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[7.430]

If a transcript of the hearing or other relevant materials cannot be obtained within the time required for filing the affidavit in support, the appellant should file an interim affidavit which outlines the alleged facts of the charges and what occurred in the Magistrates’ Court hearing, and exhibit the certified extracts and the other requisite materials if available. That affidavit should foreshadow the filing of a further affidavit exhibiting the transcript.

Commencement by filing [7.430] The initiating documents are filed at the Supreme Court registry (currently located on the Second Floor at 436 Lonsdale Street). The originating motion should be printed out in quadruplicate, or more if there are more than two defendants. The registry clerk will retain one copy of the originating motion for the court file and seal the remaining copies, which are then handed back for service upon the defendants. It is recommended that a spare sealed copy of the originating motion be retained on file as it can be used for service if a service copy goes astray. The originating motion must be accompanied by a Court 2 Applications Form, which can be printed off from the Supreme Court website: http://www.supremecourt.vic.gov.au. The form will also be available at the registry and can be filled in while the clerk is processing the documents. The date of the directions hearing will be written on the summons by the registry clerk. Only the original affidavit has to be brought in for filing. The exhibits are not retained on the court file. Instead, the original exhibits are to be made available at the hearing of the appeal. As these proceedings are reviews of criminal proceedings they are exempt from filing fees and hearing fees. It is important to remember that, unlike other forms of criminal appeal, the Supreme Court does not separately notify the court under review, the Office of Public Prosecutions or the informant of the judicial review proceedings. Until the party filing the proceeding notifies the defendants or effects service upon the defendants, the defendants will have no knowledge of the appeal proceeding and will therefore not take any steps to preserve exhibits or defer the execution of any sentence-related orders until served or otherwise properly notified.

Service of originating motion [7.440] Sections 391 and 392 of the CPA do not apply to proceedings of this type. Instead, service is governed by O 6 of the Supreme Court (General Civil Procedure) Rules 2015. Rule 6.02 requires the originating process to be

[7.480]

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served personally on each defendant unless the defendant is a corporation,56 or a solicitor agrees to accept service on behalf of a defendant.57 Rule 6.03 stipulates that personal service is effected by: (a) leaving a copy of the document with the person to be served; or (b) if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document. The rules do not provide the option under CPA s 391(2)(c) of leaving the document with a person over 16 years of age at the defendant’s address. Rule 6.10 of the Supreme Court (General Civil Procedure) Rules 2015 provides that if no solicitor is acting and the accused cannot be located, an application can be made for an order for substituted service. Service upon informant [7.450] If an informant (defendant) is a member of Victoria Police, the Office of Public Prosecutions can agree to accept service on behalf of that defendant. To obtain such agreement, the appellant or his legal practitioner should contact the Appeals section of the OPP beforehand. Service upon prosecuting agency other than police [7.460] If the informant is acting on behalf of another prosecuting agency, such as the Roads Corporation, a municipal council, Worksafe Victoria and the like, the business address for service provided on the charge may be the business address of the agency concerned. If not, it is suggested that the agency be contacted for the purpose of confirming whether service will be accepted by the agency at its principal place of business. Service upon DPP [7.470] In a County Court criminal trial proceeding the DPP is usually the prosecuting party. The Office of Public Prosecutions is the practitioner on record and shares the same business address as the DPP. Service upon court under review [7.480] To effect service upon the judge or magistrate under review, the originating motion and affidavit in support can be served by leaving them with the relevant court registrar and or the relevant judge’s Associate. 56 Supreme Court (General Civil Procedure) Rules 2015 r 6.04. 57 Supreme Court (General Civil Procedure) Rules 2015 r 6.09.

384

Criminal Appeals and Reviews in Victoria

[7.490]

Response from court under review [7.490] As related above (at [7.270]), the court named as a defendant will not normally take an active part in the proceedings.58 If the court were to become a protagonist in the review proceedings, there is a danger that the court may not be seen as truly impartial if the matter is remitted back to the court for rehearing. The usual practice is that the court named as a defendant will send a letter (a “Hardiman letter”) to the Supreme Court stating that the court under review does not intend to take an active role and will abide by the decision of the Supreme Court.

Notice of appearance [7.500] The Form 5G originating motion will stipulate that if a defendant intends to defend the proceeding, the defendant must file a notice of appearance (Form 8A59) on or before the return date of the originating motion. As well as giving notice of intention to defend, this document confirms that the defendant has been served, and provides the court and the plaintiff with the defendant’s or the defendant’s solicitor’s contact details, as well as the defendant’s address for service of all future documents and notices.

Affidavit of service [7.510] If no notice of appearance or “Hardiman letter” has been received by the Supreme Court prior to the return date of the summons on an originating motion, the plaintiff will have to file affidavits of service before any orders can be made to progress the matter. Although it is open to the plaintiff to apply for relief ex parte if a properly served defendant has failed to file an appearance or appear on the return date, the court will almost invariably decline to determine the matter summarily. Instead, directions will be made to progress the matter in the normal manner and ensure that the defendant has been given the opportunity to respond to the plaintiff’s claim.

PART THREE: PROCEDURES FOR ALL CASES IN JUDICIAL REVIEWS AND APPEALS LIST Procedures for all cases in Judicial Reviews and Appeals List [7.520] Appeals on a question of law and O 56 judicial reviews are placed in the Supreme Court’s “Judicial Reviews and Appeals List” and both are subject to Practice Note No 9 of 2015 or its successor.

Powers of an Associate Judge of the Supreme Court [7.530] The first (directions) hearing upon return of a summons for directions or Form 5G originating motion is before an Associate judge. 58 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. 59 Supreme Court (General Civil Procedure) Rules 2015 r 8.05(1).

[7.580]

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The powers of an Associate judge are set out in O 77 of the Supreme Court (General Civil Procedure) Rules 2015. The Associate judge has the power to determine applications for leave to file a notice of appeal or originating motion out of time, and to determine applications for summary judgment pursuant to Pt 4.4 of the Civil Procedure Act 2010 (Vic). However, an Associate judge does not have the power to make an order affecting the liberty of the subject.60 See [7.230] concerning applications for the staying of the lower court’s orders which has equal application to both types of review.

Directions prescribed by the Supreme Court [7.540] Subject to any applications which may be made at the directions hearing, the matter is progressed by way of directions prescribed by Practice Note No 9 of 2015, and or its successor, providing times for the filing of further affidavits, affidavits in reply, written submissions, court books and the like, and referral to the listing Associate judge. For sample forms of orders and directions for both types of appeal or review, see [7.960] and [7.970]. Directions by consent [7.550] If the active parties reach agreement as to the directions to be made, signed minutes of consent can be filed prior to the hearing, and attendance at the directions hearing may be dispensed with if the Associate judge confirms via his or her Associate that the orders will be made on the papers. Liberty to apply [7.560] The parties retain liberty to apply. can apply for variations to the directions vacate a hearing date and relist the final liberty to make an application for summary

This means that either party made along with orders to hearing. This also includes judgment.

Fixing of hearing date [7.570] If a hearing date is not fixed at the directions hearing, the orders made will include referral to the listing Associate judge with an estimated duration of hearing provided by the parties. A notice of hearing is usually forwarded to the parties within two weeks after the directions hearing. Charter issues [7.580] If a question of law arises that relates to the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic), or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter, then a party must give notice to the Attorney-General for Victoria and the Victorian Equal Opportunity and 60 Supreme Court (General Civil Procedure) Rules 2015 r 77.02(3)(c).

386

Criminal Appeals and Reviews in Victoria

[7.590]

Human Rights Commission,61 who may or may not intervene in the proceedings.62 If this occurs, the Associate judge should include directions for the service of Charter of Human Rights and Responsibilities Act 2006 (Vic) s 35 notices on the aforementioned (if this not already been done) and include a clause fixing a date for the filing of any submissions that the potential interveners may wish to file. That date should be after the parties have filed their submissions and provided copies to the Victorian Attorney-General and the Victorian Equal Opportunity and Human Rights Commission.

Resolution of appeal or judicial review by consent [7.590] If the active parties agree that an error has occurred and the appeal or review must be allowed, and the final orders to be made can be settled, the matter can be expedited by arranging for the immediate referral of the appeal or judicial review to the Practice Court for consent orders by a judge. Referral to the Practice Court for the final orders is usually necessary where there is the potential for imprisonment, because an Associate judge does not have the power to make any orders which affect the liberty of the subject. This can be done by including an application for referral in the summons for directions, or a later listing of the matter attended by the filing of minutes of consent and notification of the Practice Court co-ordinator (practicecourt@supreme court.vic.gov.au) in the manner prescribed on the Supreme Court’s website. Resolution by consent does not usually produce a written judgment. Instead, the finalised orders should include a recital of the details of the error that the parties agree has occurred and which the judge is satisfied has occurred.

Application for summary judgment [7.600] Part 4.4 of the Civil Procedure Act 2010 (Vic) gives a party a right to apply for summary judgment on the ground that the other party’s claim or defence has no real prospect of success. If it is clear that a judicial review proceeding is incompetent or without merit, it is open to a defendant to make an application pursuant to s 62 of the Civil Procedure Act 2010 (Vic) for summary judgment.63 The Court of Appeal has stated that: the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” “chance of success”.64

It follows that this test applies to applications pursuant to s 62 of the Civil Procedure Act 2010. Such applications can be determined by an Associate 61 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 35. 62 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 34. 63 Civil Procedure Act 2010 (Vic) s 63. 64 Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 at 40 [35].

[7.630]

7 Question of Law Appeals and Judicial Reviews

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judge. They can also be determined by a judge in the Practice Court. This occurred in Kotzmann v Magistrates’ Court65 where a proceeding brought by a prisoner to review a direction by a magistrate in a committal proceeding, was dismissed upon the application by the second defendant.

Appeal against order made by Associate Judge [7.610] There is an immediate right of appeal to the Practice Court against an order made by an Associate judge.66 A notice of appeal67 is to be filed and served within 14 days of the order concerned.68 This procedure is governed by Practice Note No 4 of 2012. This practice note provides the requisite directions for filing an appeal book containing all materials before the Associate judge and a transcript of the hearing. The transcript has to be requested from the court and it is typed up by an accredited transcription service at the appellant’s expense.

Further affidavit and affidavit in reply [7.620] The directions made by the Associate judge will provide for the filing of further affidavits and affidavits in reply. If a pending transcript or other material that is not available has not been included in the affidavit in support, a further affidavit in support exhibiting this additional material is filed once the additional material has been obtained. The respondent/defendant is given the opportunity to file an affidavit in reply that deposes to those matters that are correct, or contradicting, or which have not been included in the appellant’s affidavits. Quite often the appellant will not have exhibited all or some of the exhibits tendered by the respondent at the Magistrates’ Court hearing. The affidavit in reply can be used to bring omitted materials before the Supreme Court. As in the case of the appellant/plaintiff, the affidavit is confined to the evidence and submissions that were before the court concerned.69 There can be exceptions, but the additional material has to be directly relevant to the proceeding under review.

Written outlines of submissions [7.630] The directions made by the Associate judge will require the appellant/plaintiff to file and serve a written outline of submissions and a list of authorities, and the respondent/defendant to file an outline of submissions in response along with a list of authorities. There is no prescribed form or limit to the length of those submissions. Guidance as to the appropriate form and content of these outlines of submissions can be found in the directions for written cases in the Court of Appeal. 65 Kotzmann v Magistrates Court [2014] VSC 83. 66 Supreme Court (General Civil Procedure) Rules 2015 r 77.06. 67 Supreme Court (General Civil Procedure) Rules 2015 r 77.06.3. 68 Supreme Court (General Civil Procedure) Rules 2015 r 77.06.2. 69 Practice Note No 9 of 2015 cl 4.2.

388

Criminal Appeals and Reviews in Victoria

[7.640]

Court book and combined book of authorities [7.640] Pursuant to Practice Note No 9 of 2015 (or its successor), the contents of the court book are to be agreed between the parties. The party with responsibility for preparing and filing the court book is usually the appellant/plaintiff. That party should send a draft index and draft combined list of authorities to the other active party or parties and seek their agreement and suggested amendments. The book should contain the originating motion/notice of appeal, all affidavits in support of the substantive appeal, and in reply, along with copies of the exhibits including transcripts of the hearing under review. The written submissions filed by the parties must be included. Sample court book indexes for both types of appeal/review are provided at [7.980] and [7.990]. The court book does not have to be bound. It can be in looseleaf form in a two- or four-ring folder with tabs for each separate document. Usually, it is not necessary to include copies of the interlocutory orders, such as the Associate judge’s directions, as they should have become redundant once all prehearing tasks have been completed. If leave has been granted to file out of time, to file an amended notice of appeal, or an amended originating motion, the order granting leave should be included. The Combined Book of Authorities should include all cases and legislation cited in the written submissions filed by all parties. The purpose of the Book of Authorities is to have all cases in the one folder to avoid the duplication that will occur if the parties file separate bundles of authorities.

Notice of trial and callover form [7.650] The prosecuting party is required to file a Form 48B notice of trial confirming readiness to proceed.70 The Supreme Court will also forward by email or facsimile transmission, or post, a notice of callover form to be completed by each party and returned to the court by way of email or facsimile transmission. If the matter is not ready due to a failure to comply with the directions, this should be communicated to Supreme Court listings (with the other party copied in) with a request for a further directions hearing. The Supreme Court will issue a notice of hearing. At the further directions hearing, the Associate judge can vacate the final hearing date and make further directions, or dismiss the proceeding for want of prosecution. Alternatively, a party can issue a summons for further directions along with an application to vacate the hearing date, or an application for summary dismissal.

70 Supreme Court (General Civil Procedure) Rules 2015 rr 48.03 and 48.04(2). Form 48A is intended for first instance civil trials and most of its queries are irrelevant to cases in the judicial reviews and appeals list. No setting down fee is required as it is a review of a criminal proceeding.

[7.680]

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Proceeding discontinued [7.660] Pursuant to r 25.03 of the Supreme Court (General Civil Procedure Rules) 2015, a question of law appeal or judicial review proceeding can be discontinued or withdrawn, either by leave of the court or with the consent of the parties. Under r 63.15 of the Supreme Court (General Civil Procedure Rules) 2015 the appellant/plaintiff remains liable to pay the costs of the responding party up to the time of the discontinuance. If the responding party agrees to waive their right to costs, or the parties reach agreement about the quantum of costs incurred, the appellant/plaintiff can file a notice of discontinuance which has been signed by all active parties to the proceeding,71 and apply to an Associate judge for consent orders that dismiss the proceeding and state “no order for costs”, or order that costs be paid in the sum that has been agreed upon.

Hearing and determination of appeal or judicial review [7.670] The substantive hearing of the appeal or judicial review will proceed in the same manner as a hearing in the Court of Appeal: see Chapter 10 of this book on appellate advocacy. It is usual for the judge to reserve his or her decision. However, judgment can also be given at the end of the hearing or later the same day. Appeal on question of law [7.680] On the hearing and determination of a question of law, if the question of law involves a decision made in the exercise of a judicial discretion, the principles in House v The King apply.72 This means that if the decision under review was made within the normal or reasonable scope of the judicial discretion, the appeal would not normally succeed. The plaintiff will have to establish that the decision was, for example, ultra vires or unreasonable. If the matter is an appeal on a question of law: after hearing and determining the appeal the court may make any order it thinks appropriate, including an order remitting the case for rehearing to the Magistrates’ Court [or Children’s Court] with or without any direction in law.73

In practice, the usual disposition of a successful appeal is remittal for rehearing or complete dismissal of the charge. However, some recent decisions have included resentencing on an alternative charge.74 71 Supreme Court (General Civil Procedure) Rules 2015 r 25.04(2). 72 House v The King (1936) 55 CLR 499. The plaintiff or appellant must show that there is an error in the decision, not simply that the appellate court would have arrived at a different result. 73 CPA s 272(9); CYFA s 430P(9). 74 See, eg, McWhirter v Dunlop; Tran v Harris [2013] VSC 697; Banks v Bice [2014] VSC 610; and Rodger v Wojcik [2014] VSC 308. Another common feature of these cases is that the

390

Criminal Appeals and Reviews in Victoria

[7.690]

Order 56 judicial review [7.690] If the matter is an O 56 judicial review, the court’s disposition powers are founded in the remedies of certiorari and mandamus. As these are based upon errors in process, the usual remedy is remittal of the case for rehearing and determination according to law.

Costs [7.700] In both types of proceedings, costs orders are sought. They are usually made in favour of the successful party.75 The argument that the parties be indemnified under the Appeals Costs Act 1998 (Vic) was dismissed by the Court of Appeal in DPP v Hore (No 2).76 In that case it was assumed to be settled law that on judicial review the Supreme Court could order costs in the usual manner. The costs powers set out in Pt 4.5 of the Civil Procedure Act 2010 are additional to any other power or inherent jurisdiction of the Supreme Court to order costs.

appellant appealed against a summary hearing that had proceeded ex parte. The questions of law in each case related to an alleged defect in the police evidence which was discerned after a close reading of the charge sheet or the police brief served upon the accused. 75 Normally costs are not awarded against the court under review, but in exceptional circumstances costs can be awarded against the court: see, eg, Robinson v Magistrates’ Court of Victoria [2000] VSCA 198. 76 DPP v Hore (No 2) [2005] VSCA 55.

[7.710]

7 Question of Law Appeals and Judicial Reviews

Flow chart 7.1: Cases in Judicial Reviews and Appeals List [7.710]

391

392

Criminal Appeals and Reviews in Victoria

[7.710]

[7.720]

7 Question of Law Appeals and Judicial Reviews

393

PART FOUR: APPLICATION FOR LEAVE TO APPEAL TO COURT OF APPEAL Application for leave to appeal to Court of Appeal [7.720] If a party, which can be either the accused or the informant, is dissatisfied with the decision of the single Supreme Court judge who determined the question of law or judicial review, the next avenue is to make an application for leave to appeal to the Civil Division of the Court of Appeal pursuant to ss 10(1)(a) and 14A of the Supreme Court Act 1986 (Vic) (hereafter “SCA”). Section 14A(3) of the SCA states (for the purposes of s 14):

394

Criminal Appeals and Reviews in Victoria

[7.730]

“civil appeal” means an appeal from a judgment or order made in exercise of civil jurisdiction, including an appeal by way of rehearing or judicial review, for which this Act, any other Act or the Rules provide an appeal to the Court of Appeal.

As noted in the introduction to this chapter, these single judge decisions can have significant ramifications in respect of the day-to-day conduct of summary prosecutions and trials. If an accused is the successful party in an appeal on a the question of law or a judicial review, and the decision is likely to affect other prosecutions, the DPP or other prosecuting agency may make an application for leave to appeal on behalf of the informant.

New procedures [7.730] The Court of Appeal’s Civil Division processes have been transformed by legislative amendments which commenced on 10 November 2014.77 In many respects the changes mirror the “AshleyVenne” reforms of the criminal appeals procedure, discussed in Chapter 1 of this book (at [1.30]). The major differences between the procedures in the Court of Appeal Civil Division and the Court of Appeal Criminal Division, include the following: (a) the appellant prepares a “summary of facts, proceedings and issues” and that summary is settled between the parties (if possible); and (b) the applicant or appellant is responsible for preparing and filing application or appeal books and a combined folder of authorities. The new procedures are governed by Practice Direction No 7 of 2014 and O 64 of the Supreme Court (General Civil Procedure) Rules 2015.78

Leave to appeal [7.740] Leave to appeal is required for all appeals to the Civil Division of the Court of Appeal.79 Leave to appeal may be granted only if the court is satisfied that the appeal has “a real prospect of success”.80 Leave to appeal can be granted by one or more Judges of Appeal.81 The amended rules provide that a single Judge of Appeal can determine an application with or without an oral hearing. 77 Courts Legislation Miscellaneous Amendments Act 2014 ss 3 – 8. In particular, s 4 inserted new ss 14A, 14B, 14C and 14D into the Supreme Court Act 1986. 78 These are available on the Supreme Court website: see http:// www.supremecourt.vic.gov.au. A flow chart setting out the process is also provided on that website. 79 SCA s 14A. 80 SCA s 14C. Compare with the test for leave to appeal conviction where the applicant must show that one or more grounds is “reasonably arguable”: Moza v The Queen [2015] VSCA 317 at [47], [64]. This indicates that it is more difficult to obtain leave to appeal the decision of a single Supreme Court judge regarding a question of law, than to obtain leave to appeal a conviction. 81 SCA s 14D(1).

[7.780]

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Time limits [7.750] The time limit for commencing Court of Appeal proceedings in respect of an order made in the Supreme Court Trial Division (Civil) is 28 days from the date of the order or decision under appeal.82

Initiating documents [7.760] To commence an application for leave to appeal to the Court of Appeal, an application for leave to appeal containing the information required by r 64.04 of the Supreme Court (General Civil Procedure) Rules 2015 must be filed within 28 days of the Supreme Court decision. The application must be accompanied by:83 (a) a written case;84 (b) a copy of the order to be appealed; (c) a copy of the judgment or reasons for decision; (d) a draft application book index; and (e) a draft summary of facts and summary of proceedings and issues.

Applications other than applications for leave to appeal [7.770] Applications other than applications for leave to appeal are governed by r 64.15 of the Supreme Court (General Civil Procedure) Rules 2015 and s 3 of Practice Direction No 7 of 2014. The most likely ancillary applications are for a stay of the orders in respect of which leave to appeal is sought pending determination of the Court of Appeal proceedings, or an extension of time to commence an application for leave. Applications for a stay will not usually be considered until all materials for an application for leave to appeal have been filed so it is appropriate to file and serve the separate applications at the same time as the application for leave to appeal. The separate requirements for applications other than applications for leave to appeal include a written notice (Form 64B) and an affidavit in support, which must be served within five days of filing or such other time as directed by the Registrar. The respondent is required to give notice of opposition or non-opposition by filing, as applicable, a notice of opposition or a notice of intention not to respond or contest (Form 64D (if opposing) or Form 64E (if not opposing)) within 14 days of service.

Service [7.780] Service upon the respondent is to be effected as soon as practicable after the filing of the application, and within five days unless the court or Registrar otherwise directs.85 If the respondent is represented, 82 SCA s 14B(1). 83 Practice Direction No 7 of 2014 s 2. 84 Practice Direction No 7 of 2014 s 7. 85 Supreme Court (General Civil Procedure) Rules 2015 rr 64.07 and 64.08.

396

Criminal Appeals and Reviews in Victoria

[7.790]

service can be effected by forwarding the documents by email and forwarding the hard copies by post. If the respondent is not represented, it will be necessary to effect personal service of the relevant documents. After service, the applicant must file a list of persons served in Form 64C.86

Written case in response [7.790] Within 28 days of service the respondent is required to file and serve a written case in response.87 At that time, the respondent must also advise the applicant of any proposed changes to the draft summary of facts, and may also file and serve a cross- application for leave to appeal, a cross-appeal, or a notice of contention.88 In addition, the respondent must notify the applicant of any proposed changes to the draft summary.89

Respondent does not intend to respond or contest application for leave to appeal [7.800] If a respondent does not intend to respond or contest the application for leave to appeal, that respondent must file a notice of intention not to respond or contest within 28 days of service of the application papers.90

Cross-applications for leave to appeal and notices of contention [7.810] The respondent can also file and serve a notice of crossapplication for leave to appeal in accordance with Form 64A, or a notice of contention in accordance with Form 64G within 28 days of service of the applicant’s application for leave to appeal and their written case.91

Registrar settles contents of application book [7.820] Upon receipt of the written case in response and any notice of cross-application for leave to appeal or notice of contention, the registrar will settle the contents of the application book.92 Within 28 days (or such other time as specified by the registrar) one copy of the application book must be submitted to the registrar. The registrar will give notice of 86 Supreme Court (General Civil Procedure) Rules 2015 r 64.06(5). 87 Practice Direction No 7 of 2014 s 9; Supreme Court (General Civil Procedure) Rules 2015 r 64.24. 88 Practice Direction No 7 of 2014 s 4; Supreme Court (General Civil Procedure) Rules 2015 r 64.03; Forms 64A and 64G. 89 Practice Direction No 7 of 2014 ss 9(5), 10 and 11. 90 Supreme Court (General Civil Procedure) Rules 2015 r 64.11(b) and Form 64E. 91 Supreme Court (General Civil Procedure) Rules 2015 rr 64.30 – 64.32. See also Practice Direction No 7 of 2014 s 4. 92 Practice Direction No 7 of 2014 s 10(1).

[7.860]

7 Question of Law Appeals and Judicial Reviews

397

approval or require corrections. Within a further 14 days, the applicant is to file three copies of the application book and serve a copy on each party along with a written certification that the copies of the book filed and served comply with any direction by the registrar.

Filing combined folder of authorities and agreed list of transcript references [7.830] Fourteen days prior to the hearing of the application for leave to appeal, the applicant (or the respondent if the applicant is selfrepresented) must file a combined folder of authorities93 and an agreed list of transcript references.94 Format of combined folder of authorities [7.840] The combined folder of authorities should be divided into three sections and labelled as follows: (a) authorities and legislation relied upon both by the applicant (or appellant) and the respondent; (b) authorities and legislation relied upon by the applicant (or appellant) only; and (c) authorities and legislation relied upon by the respondent only. Agreed list of transcript references [7.850] The agreed list of transcript references must clearly identify the transcript references relied on (in respect of each ground of appeal) by the applicant and the respondent and the references relied on jointly by more than one party, who are to be specified. The transcript references are to the transcript of the hearing before the Supreme Court judge. In respect of appeals on a question of law and judicial reviews, such a list should be brief as little other than legal argument and rulings of a threshold nature occur in such hearings. The document is of greater importance in applications or appeals that relate to civil trials conducted in the County Court and the Supreme Court.

Referral by Registrar of applications for leave to appeal [7.860] Once all documents have been filed, the registrar will refer the application for leave to appeal to a single judge.95 The registrar can expedite an application by making the referral prior to the filing of all necessary documents as well as making directions with an abridgment of the usual times for filing all remaining documents. Thus, the registrar has broad powers to give directions for the expedition of applications and 93 Practice Direction No 7 of 2014 s 13. 94 Practice Direction No 7 of 2014 s 14. 95 Practice Direction No 7 of 2014 s 15; Supreme Court Act 1986 s 11(1C).

398

Criminal Appeals and Reviews in Victoria

[7.870]

appeals.96 He or she can also make a direction for the electronic filing of all documents including the application or appeal books.

Consideration of applications by a single Judge of Appeal [7.870] The single judge may determine the application on the papers without an oral hearing, or direct that it be listed for oral hearing.97 The single judge also has the discretion to refer the application to a bench of two or more judges. If the latter occurs, the parties may be directed to be prepared to argue the full merits of the appeal as the Full Court may decide to finalise the matter by granting leave to appeal and determining the appeal at the same hearing. At the oral hearing of an application for leave to appeal, the time for argument is limited to 15 minutes for the applicant and 10 minutes for the respondent, unless the court otherwise directs.98

Dismissal of application for leave to appeal with oral hearing [7.880] If an application for leave to appeal is dismissed after an oral hearing, that is the end of the proceeding.

Dismissal of application for leave to appeal without oral hearing [7.890] If an application for leave to appeal is dismissed without an oral hearing, the applicant can make an application to have the dismissal set aside or vary the order for dismissal pursuant to r 64.14 of the Supreme Court (General Civil Procedure) Rules 2015 which will be determined by a court constituted by two or more judges of appeal.99 However, if the court considering the application without an oral hearing has also determined that the application is totally without merit, the applicant has no right to apply to have the dismissal set aside or varied.100 An application pursuant to r 64.14 will be determined on the papers already filed unless additional documents are ordered by the court or the registrar. A proposed new ground of appeal will not be added in the application except with leave of the court. The hearing date will be fixed by the registrar and the same time limits for oral argument of 15 minutes for the applicant and 10 minutes for the respondent will apply unless the court otherwise directs.101

96 Practice Direction No 7 of 2014 s 17. 97 Practice Direction No 7 of 2014 s 16. 98 Practice Direction No 7 of 2014 s 16(4). 99 SCA s 14D; Practice Direction No 7 of 2014 s 18. 100 SCA s 14D(3). 101 Practice Direction No 7 of 2014 s 18.

[7.920]

7 Question of Law Appeals and Judicial Reviews

399

Leave to appeal granted [7.900] If a court constituted by two or more judges has heard an application for leave to appeal and has had the full merits of appeal argued before it, the court can grant leave to appeal, treat the appeal as heard instanter and make final orders determining the appeal. If leave to appeal is granted by a single judge, or a court of two or more judges confines its decision to the granting of leave to appeal, the registrar will make directions that will include the filing of any amended or further notices of appeal and written cases, and the filing of appeal books with indexes and summaries revised as appropriate. The procedure will be the same as that provided for applications for leave as those provided in Practice Direction No 7 of 2014 for applications for leave to appeal. However this is subject to any directions that may be made to expedite the hearing of the appeal, and any orders that confine or broaden the scope of the appeal.

Powers of Court of Appeal [7.910] Pursuant to SCA s 10(3), the Court of Appeal may, in proceedings before it, “exercise every jurisdiction or power of the Court”. In practice this means that it can substitute its judgment for that of the trial division judge and make orders that were within the scope of the trial judge’s jurisdiction.

Sample forms [7.920] The following sample forms are appended to this chapter as follows: [7.930] – Notice of Appeal on Question of Law [7.940] – Summons for Directions for Appeal on Question of Law [7.950] – Originating Motion Form 5C [7.960] – Orders and Directions for Question of Law Appeal [7.970] – Orders and Directions for Judicial Review [7.980] – Index to Court Book for Question of Law Appeal [7.990] – Index to Court Book for Judicial Review

400

[7.930]

Criminal Appeals and Reviews in Victoria

[7.930]

Notice of Appeal on Question of Law

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

S CI 20.. ..........

JUDICIAL REVIEWS AND APPEALS LIST IN THE MATTER OF an Appeal on a Question of Law pursuant to Section 272 Criminal Procedure Act 2009 (or Section 430P Children, Youth and Families Act 2005) BETWEEN: [name of appellant] Appellant And [name of respondent] Respondent NOTICE OF APPEAL Date of document: Filed on behalf of: Prepared by: [firm name] [firm address] Solicitor/s for the Appellant

Solicitor’s code: Telephone: Facsimile: email: Reference: File:

[day] [month] 20.. Appellant XXXX (03) XXXX XXXX (03) XXXX XXXX [email protected] X Xxxxxx 0000000

TAKE NOTICE that the Appellant appeals to the Supreme Court of Victoria under Section 272(1) Criminal Procedure Act 2009 against the final orders made on [day] [month] 20.. by Mr/s [name of Magistrate] Magistrate, in the Magistrates’ Court at [locality] in Case No [case no] whereby His/Her Honour [summary of orders and charges eg: convicted the Appellant on Charges 1 and 2 being charges for offences contrary to Section 49(1)(b) Road Safety Act 1986 and Section 49(1)(f) Road Safety Act 1986 respectively] wherein the Appellant, [appellant’s name], was the Accused and [informant’s name] was the Informant. QUESTIONS OF LAW/GROUNDS OF APPEAL [grounds / questions of law] 1.] ORDERS SOUGHT IN THIS APPEAL The Appellant seeks orders that: 1. This appeal be allowed.

[7.930]

7 Question of Law Appeals and Judicial Reviews

401

2. The orders made on orders made on [day] [month] 20.. by Mr/s [name of Magistrate] Magistrate, in the Magistrates’ Court at [locality] in Case No [court proceeding number] be quashed. 3. The Charges in Magistrates’ Court Case No [court proceeding number] be remitted back to the Magistrates’ Court at [locality] for hearing and determination according to law. 4. That the Respondent pay the Appellant’s costs of this appeal, including any reserved costs. 5. Such further and other orders and relief as this Court deems appropriate. LIST OF PERSONS TO BE SERVED WITH THIS NOTICE 1. The Respondent, [informant’s name]. 2. The Registrar, Magistrates’ Court of Victoria at [locality] for His/Her Honour [Magistrate’s name], Magistrate. DATED: the [day] of [month] 20.. .................................................. [name of lawyer or firm] Solicitor for the Appellant

402

[7.940]

Criminal Appeals and Reviews in Victoria

[7.940]

Summons for Directions for Appeal on Question of Law

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

S CI 20.. ..........

JUDICIAL REVIEWS AND APPEALS LIST IN THE MATTER OF an Appeal on a Question of Law pursuant to Section 272 Criminal Procedure Act 2009 (or Section 430P Children, Youth and Families Act 2005) BETWEEN: [name of appellant] Appellant And [name of respondent] Respondent SUMMONS FOR DIRECTIONS Date of document: Filed on behalf of: Prepared by: [firm name] [firm address] Solicitor/s for the Appellant

Solicitor’s code: Telephone: Facsimile: email: Reference:

[day] [month] 20.. Appellant XXXX (03) XXXX XXXX (03) XXXX XXXX [email protected] X Xxxxxx

TO: [name of respondent] You are summoned to attend before the Court on the hearing of an application by the Appellant for orders and directions to the following effect: 1. Any further affidavits, answering affidavits and outlines of submissions upon which the parties desire to rely be filed and served by such times and dates as the Court sees fit. 2. The Appeal be referred to the Associate Justice in charge of the Judicial Reviews and Appeals List at such time and date as the Court sees fit, for listing for trial. 3. The Appellant’s costs of the application be reserved. 4. Such further or other orders as this Honourable Court sees fit. The application will be heard before the Associate Justice in Court No ......................... , Supreme Court, 436 Lonsdale Street, Melbourne on .......... 20.. at 10.30 am or so soon afterwards as the business of the Court allows. FILED:

[7.950]

[7.950]

7 Question of Law Appeals and Judicial Reviews

403

Originating Motion Form 5G Form 5G

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

S CI 20.. ..........

JUDICIAL REVIEWS AND APPEALS LIST BETWEEN: [name of Plaintiff] Plaintiff And [name of First Defendant] First Defendant And THE [name of court] COURT OF VICTORIA Second Defendant ORIGINATING MOTION FOR JUDICIAL REVIEW Date of document: Filed on behalf of: Prepared by: [firm name] [firm address] Solicitor/s for the Appellant

Solicitor’s code: Telephone: Facsimile: email: Reference:

[day] [month] 20.. Appellant XXXX (03) XXXX XXXX (03) XXXX XXXX [email protected] X Xxxxxx

TO: THE DEFENDANTS THE PLAINTIFF CLAIMS 1. An order in the nature of certiorari or of mandamus bringing up and quashing the Order made by His Honour [title and name of judicial officer], of the [name of court] Court of Victoria, the Second Defendant, sitting at [locality] on [date of hearing] in proceeding number [court proceeding number] whereby [particulars of the orders made] and the Second Defendant committed an error upon the face of the record or jurisdictional error by [particulars of error]. 2. An order declaring that the Second Defendant erred in [particulars of error/s]. 3. An order in the nature of mandamus that the charges preferred against the plaintiff in proceeding number [court proceeding number] be remitted to the [name of court] Court of Victoria for hearing and determination according to law. 4. Such further or other orders as to this Honourable Court appear fit.

404

Criminal Appeals and Reviews in Victoria

[7.950]

THE GROUNDS RELIED UPON ARE: 1. The Second Defendant erred in law by [particulars of main or first error]. 2. The Second Defendant erred in law by [particulars of further error/s]. FURTHER PARTICULARS of the claim appear in the affidavit made in support of the claim. A copy of the affidavit and of any exhibit to the affidavit is served with this originating motion. AND TAKE NOTICE that the plaintiff will apply to an Associate Judge in Court No ......................... , Supreme Court, 436 Lonsdale Street, Melbourne on [insert date] at [insert time] or so soon afterwards as the business of the Court allows. At that time the Associate Judge may, as appropriate – (a) where the Associate Judge has authority to give the judgment sought by the plaintiff, hear and determine the application or refer it to another Associate Judge for hearing and determination; (b) by consent of the defendant, give the judgment; (c) refer the application to a Judge of the Court for hearing and determination; (d) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise. IF YOU INTEND TO DEFEND THIS PROCEEDING you must: (a) give notice of your intention by filing an appearance on or before the day specified above; and (b) attend before the Associate Judge as specified above. YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by: (a) filing a “Notice of Appearance” in the Prothonotary’s office, 436 Lonsdale Street, Melbourne, or, where the originating motion has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and (b) on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff’s address for service, which is set out at the end of this originating motion. IF YOU FAIL to file an appearance on or before the day specified above or to attend before the Associate Judge on that day, the plaintiff MAY OBTAIN JUDGMENT AGAINST YOU without further notice. FILED [insert date]. Prothonotary

[7.950]

7 Question of Law Appeals and Judicial Reviews

405

SCHEDULE 1. Place of trial – Melbourne. 2. This originating motion was filed for the Plaintiff by [name of lawyer or firm] [address of lawyer or firm]. 3. The address of the Plaintiff is [plaintiff’s address]. 4. The address for service of the plaintiff is [address of lawyer or firm]. 5. The addresses of the Defendants are: – (a) First Defendant – [address of First Defendant]. (b) Second Defendant – [address of Second Defendant].

406

[7.960]

Criminal Appeals and Reviews in Victoria

[7.960]

Orders and Directions for Question of Law Appeal

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

S CI 20. ..........

JUDICIAL REVIEWS AND APPEALS LIST IN THE MATTER OF an Appeal on a Question of Law pursuant to Section 272 Criminal Procedure Act 2009 (or Section 430P Children, Youth and Families Act 2005) BETWEEN: [name of Appellant] Appellant and [name of Respondent] Respondent GENERAL FORM OF ORDER

ASSOCIATE JUDGE:

[name of Associate Judge] AsJ

DATE MADE:

[date of order]

ORIGINATING PROCESS:

Notice of Appeal filed on [date of filing]

HOW OBTAINED:

By Summons for Directions filed [date of filing]

ATTENDANCE:

Mr/s ......................... for the Appellant. Mr/s ......................... for the Respondent.

OTHER MATTERS: eg:

These orders are made with the consent of the Appellant and the Respondent.

THE COURT ORDERS THAT:102 1. The Appellant file and serve any further affidavit upon which the Appellant intends to rely by 4.00 pm on [insert date eg first directions hearing plus 4 weeks]. 2. The Respondent file and serve any affidavit upon which the Respondent intends to rely by 4.00 pm on [insert date eg first directions hearing plus 6 weeks].

102 If leave to file out of time is granted, insert as the first paragraph: “Time be extended pursuant to r 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 so far as necessary to authorise the commencement by the Appellant of this proceeding.” If leave to file an amended originating motion is granted, insert as the first or second paragraph: “The Appellant is granted leave to file and serve an amended notice of appeal by 4.00 pm on [insert date, eg first directions hearing plus 2 weeks].”

[7.960]

7 Question of Law Appeals and Judicial Reviews

407

3. The Appellant file and serve a written outline of submissions and list of authorities by 4.00 p.m. on [insert date, eg first directions hearing plus 8 weeks]. 4. The Respondent file and serve a written outline of submissions and list of authorities by 4.00 pm on [insert date, eg first directions hearing plus 10 weeks]. 5. The Appellant file and serve a Court Book and a Combined Book of Authorities in accordance with the Judicial Review and Appeals Practice Note No 9 of 2015 by 4.00 pm on [insert date, eg first directions hearing plus 12 weeks]. 6. The original exhibits to all affidavits filed are to be made available to the Court at the hearing. 7. The Notice of Trial shall be in Form 48B.103 8. The proceeding is referred to the Listing Associate Judge to be listed for trial on an estimate of [insert estimated duration]104 not before [insert date, eg first directions hearing plus 13 weeks]. 9. [insert other orders such as a stay of the orders under review].105 10. The costs of today are reserved. 11. The parties have liberty to apply. .................................................. DEPUTY PROTHONOTARY

103 If this direction is not included, the appellant will be required to file a Notice of Trial in Form 48A, which is intended for first instance civil trials. Most of its queries are irrelevant to cases in the judicial reviews and appeals list. 104 The usual estimate is “half to one day”. 105 If a stay of the orders is granted, insert at this point a paragraph as follows: “The orders made by the Magistrate/Judge on [insert date of orders] in [insert name of court] Court proceeding number [insert proceeding number] by 4.00 pm on [insert date] are stayed pending the determination of this Judicial Review.”

408

[7.970]

Criminal Appeals and Reviews in Victoria

[7.970]

Orders and Directions for Judicial Review

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

S CI 20 ..........

JUDICIAL REVIEWS AND APPEALS LIST BETWEEN: [name of Plaintiff] Plaintiff And [name of First Defendant] First Defendant And THE [name of court] COURT OF VICTORIA Second Defendant GENERAL FORM OF ORDER

ASSOCIATE JUDGE:

[name of Associate Judge] AsJ

DATE MADE:

[date of order]

ORIGINATING PROCESS:

Originating Motion filed on [date of filing]

HOW OBTAINED:

By Summons on Originating Motion filed [date of filing]

ATTENDANCE:

Mr/s ......................... for the Plaintiff. Mr/s ......................... for the First Defendant.

OTHER MATTERS: eg:

1. By its letter dated [date], the Second Defendant has agreed to abide by the decision of the Supreme Court. 2. These orders are made with the consent of the Plaintiff and the First Defendant.

THE COURT ORDERS THAT:106 1. The Plaintiff file and serve any further affidavit upon which the Plaintiff intends to rely by 4.00 pm on [insert date, eg first directions hearing plus 4 weeks]. 106 If leave to file out of time is granted, insert as the first paragraph: “Time be extended pursuant to rule 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 so far as necessary to authorise the commencement by the Plaintiff of this proceeding.” If leave to file an amended originating motion is granted, insert as the first or second paragraph: “The Plaintiff is granted leave to file and serve an amended originating motion by by 4.00 pm on [insert date, eg first directions hearing plus 2 weeks].”

[7.970]

7 Question of Law Appeals and Judicial Reviews

409

2. The First Defendant file and serve any affidavit upon which the First Defendant intends to rely by 4.00 pm on [insert date, eg first directions hearing plus 6 weeks]. 3. The Plaintiff file and serve a written outline of submissions and list of authorities by 4.00 pm on [insert date, eg first directions hearing plus 8 weeks]. 4. The First Defendant file and serve a written outline of submissions and list of authorities by 4.00 pm on [insert date, eg first directions hearing plus 10 weeks]. 5. The Plaintiff file and serve a Court Book and a Combined Book of Authorities in accordance with the Judicial Review and Appeals Practice Note No 9 of 2015 by 4.00 pm on [insert date, eg first directions hearing plus 12 weeks]. 6. The original exhibits to all affidavits filed are to be made available to the Court at the hearing. 7. The Notice of Trial shall be in Form 48B.107 8. The proceeding is referred to the Listing Associate Judge to be listed for trial on an estimate of [insert estimated duration]108 not before [insert date, eg first directions hearing plus 13 weeks]. 9. [insert other orders such as a stay of the orders under review]109 10. The costs of today are reserved. 11. The parties have liberty to apply. .................................................. DEPUTY PROTHONOTARY

107 If this direction is not included, the appellant will be required to file a notice of trial in Form 48A which is intended for first instance civil trials. Most of its queries are irrelevant to cases in the judicial reviews and appeals list. 108 The usual estimate is “half to one day”. 109 If a stay of the orders is granted, insert at this point a paragraph as follows: “The orders made by the Magistrate/Judge on [insert date of orders] in [insert name of court] Court proceeding number [insert proceeding number] by 4.00 pm on [insert date] are stayed pending the determination of this Judicial Review.”

410

[7.980]

Criminal Appeals and Reviews in Victoria

[7.980]

Index to Court Book for Question of Law Appeal

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

S CI 20 ..........

JUDICIAL REVIEWS AND APPEALS LIST IN THE MATTER OF an Appeal on a Question of Law pursuant to Section 272 Criminal Procedure Act 2009 (or Section 430P Children, Youth and Families Act 2005) BETWEEN: [name of Appellant] Appellant And [name of Respondent] Respondent INDEX TO COURT BOOK

TAB

Description of document

ORIGINATING PROCESS 1Notice of Appeal;110 EVIDENTIARY MATERIAL 2– Affidavit in Support sworn by [name of deponent] 3– Further Affidavit in Support sworn by [name of deponent] 4– Exhibit 1 – Court order or certified extract Not in Exhibit 2 Disc Recording of the hearing/s (to be book provided to the court); 5– Exhibit 3 – Transcript of the hearing/s 6– Exhibit 4 – eg tendered at the hearing 7– Affidavit in reply sworn by [name of deponent]; 8– Exhibit A – eg further exhibit/s tendered at the hearing SUBMISSIONS 9– Submissions of the Appellant 10 – Submissions of the Respondent

Date of document

Page nos

xx/xx/20xx

1 – xx

xx/xx/20xx xx/xx/20xx

xx – xx xx – xx

xx/xx/20xx xx/xx/20xx

xx – xx

xx/xx/20xx xx/xx/20xx xx/xx/20xx

xx xx xx xx

xx/xx/20xx xx/xx/20xx

xx – xx xx – xx

– – – –

xx xx xx xx

110 If an amended notice of appeal has been filed with leave of the court, the notice of appeal motion is be reproduced instead. Only include an interlocutory order if it is or includes an order granting leave to file out of time, or leave to file the amended notice of appeal.

[7.990]

[7.990]

7 Question of Law Appeals and Judicial Reviews

411

Index to Court Book for Judicial Review

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

S CI 20 ..........

JUDICIAL REVIEWS AND APPEALS LIST BETWEEN: [name of Plaintiff] Plaintiff And [name of First Defendant] First Defendant And THE [name of court] COURT OF VICTORIA Second Defendant INDEX TO COURT BOOK

TAB

Description of document

ORIGINATING PROCESS 1– Originating motion111]; EVIDENTIARY MATERIAL 2– Affidavit in Support sworn by [name of deponent] 3– Further Affidavit in Support sworn by [name of deponent] 4– Exhibit 1 – Court order or certified extract Not in book Exhibit 2 Disc Recording of the hearing/s (to be provided to the court); 5– Exhibit 3 – Transcript of the hearing/s 6– Exhibit 4 – eg tendered at the hearing 7– Affidavit in reply sworn by [name of deponent]; 8– Exhibit A – eg further exhibit/s tendered at the hearing SUBMISSIONS 9– Submissions of the Plaintiff 10 – Submissions of the First Defendant

Date of document

Page nos

xx/xx/20xx

1 – xx

xx/xx/20xx

xx – xx

xx/xx/20xx

xx – xx

xx/xx/20xx

xx – xx

xx/xx/20xx xx/xx/20xx xx/xx/20xx xx/xx/20xx

xx – xx xx – xx xx – xx

xx/xx/20xx

xx – xx

xx/xx/20xx xx/xx/20xx

xx – xx xx – xx

111 If an amended originating motion has been filed with leave of the court, the amended originating motion is to be reproduced instead. Only include an interlocutory order if it is or includes an order granting leave to file out of time or leave to file the amended notice of appeal.

Chapter 8

Appeals to the Federal Court of Australia [8.10] Introduction ......................................................................................................................... 414 [8.20] Criminal jurisdiction of the Federal Court .................................................................... 414 [8.30] Appellate jurisdiction of the Federal Court ................................................................... 415 [8.40] PART A: APPEALS FROM INDICTABLE PROCEEDINGS ........................................ 415 [8.40] What judgments or decisions can be appealed against? ............................................. 415 [8.50] What is an eligible primary court? .................................................................................. 416 [8.60] Requirement of leave ......................................................................................................... 416 [8.70] Right to appeal a conviction ............................................................................................. 416 [8.120] Appeal against finding of mental illness ..................................................................... 419 [8.150] Procedure on conviction appeal ..................................................................................... 420 [8.270] Hearing of the appeal ...................................................................................................... 422 [8.480] Right of Crown to appeal a finding of no case ........................................................... 427 [8.510] Appeal against sentence for indictable offence ........................................................... 428 [8.560] DPP Appeal against sentence ......................................................................................... 429 [8.600] Appeals against bail, forfeiture of bail and interim orders and judgments .......... 430 [8.610] Case stated ......................................................................................................................... 430 [8.620] DPP Referral of question of law .................................................................................... 431 [8.630] PART B: APPEALS FROM SUMMARY PROCEEDINGS .......................................... 432 [8.630] Federal Court of Australia .............................................................................................. 432 [8.640] Jurisdiction ......................................................................................................................... 432 [8.650] Leave to appeal ................................................................................................................. 432 [8.660] Who can appeal? ............................................................................................................... 432 [8.670] Right to appeal conviction imposed in summary proceedings ............................... 433 [8.700] Appeal against sentence in summary proceeding ...................................................... 433 [8.730] Appeal against acquittal in summary proceedings .................................................... 434 [8.760] Procedure on appeals from summary proceedings .................................................... 434 [8.820] PART C: APPEALS IN FEDERAL EXTRADITION PROCEEDINGS ...................... 435 [8.820] Introduction ....................................................................................................................... 435 [8.840] Review decision of magistrate regarding eligibility for surrender .......................... 437 [8.850] Further appeal to Full Court of Federal Court ........................................................... 438 [8.860] Further appeal to High Court ........................................................................................ 438 [8.870] Admissible evidence on reviews and appeals ............................................................ 438 [8.880] Judicial review of extradition decision ......................................................................... 439 [8.890] Case examples of judicial review .................................................................................. 440

414

Criminal Appeals and Reviews in Victoria

[8.10]

Introduction [8.10] This chapter sets out the rights of parties to appeal to the Federal Court of Australia in respect to criminal matters. This includes appeals from criminal proceedings conducted within the Federal Court as well as in other courts. Appeals in respect to summary proceedings and indictable proceedings are also included as are appeals and reviews in respect to extradition decisions, although these are not criminal appeals. The chapter consists of three parts. Part A sets out the law in respect to appeals from proceedings on indictment. Part B deals with appeals from summary proceedings and Part C with reviews and appeals in extradition proceedings. Before examining the relevant substantive and procedural laws for each type of appeal, it is useful to briefly set out some background to the criminal jurisdiction of the Federal Court.

Criminal jurisdiction of the Federal Court [8.20] The Federal Court of Australia was created in 1976 principally to deal with federal civil matters such as bankruptcy, trade practices and industrial relations, although some summary offences arise from breaches of the laws in these areas. The Federal Court is a superior court of record and sits in all capital cities in Australia. It was not established as a criminal court and did not have original jurisdiction in relation to federal indictable offences. Breaches of these federal regulatory provisions continued to be prosecuted in the courts of the States and Territories. The Federal Court could, however, deal with extradition matters and hear appeals against conviction for indictable offences from the court of the Territories.1 In 2009 the Federal Parliament passed a number of Acts in response to growing concerns about serious cartel conduct by individuals and corporations.2 The Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth) created a new range of criminal offences designed to deter and punish those involved in serious cartel offences.3 The government could have decided to use the courts of the States and Territories to prosecute these new types of cases, but instead chose to give the Federal Court jurisdiction to deal with these offences. This was to ensure uniformity and consistency in the application of the new laws throughout Australia. The Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 (Cth) was enacted to achieve this purpose. 1 When the Australian Capital Territory and the Northern Territory became self-governed, appeals in indictable matters were no longer heard by the Federal Court but by the Court of Appeal in each Territory. However, in the Australian Capital Territory it took approximately ten years before the Court of Appeal was established. 2 See M Weinberg, “The Criminal Jurisdiction of the Federal Court” (2009) Bar News 24. 3 These new offences were breaches of the Trade Practices Act 1974 (Cth) but, in 2010, became breaches of the Competition and Consumer Act 2010 (Cth) ss 44ZZRF and 44ZZRG.

[8.40]

8 Appeals to the Federal Court of Australia

415

These new indictable offences are tried by judge and jury. No provision is made for judge-alone trials. Accordingly, the Federal Court of Australia Act 1976 (hereafter “FCA”) includes extensive provisions relating to the selection of the jury and offences relating to juries which mirror equivalent laws of the States and Territories. It is not expected that the Federal Court will conduct a large number of trials for indictable offences, and hence few criminal appeals from such proceedings can be expected. In addition to granting new criminal jurisdiction to the Federal Court in 2009, the reforms also consolidated and updated the legislative provisions governing the overall appellate jurisdiction of the Federal Court. A new Div 2A to Pt 111 was added to the FCA. Division 2A contains ss 30AA – 30DA, which are key to understanding the contemporary criminal appellate jurisdiction of the Federal Court.

Appellate jurisdiction of the Federal Court [8.30] Division 2A of the FCA sets out the appellate and related criminal jurisdiction of the Federal Court. Section 30AA of the FCA provides for four categories of appeal: 1. appeals concerning indictable offences;4 2. appeals concerning summary judgments in proceedings to try an offence summarily; 3. appeals concerning bail; and 4. appeals concerning interim judgments and decisions.

PART A: APPEALS FROM INDICTABLE PROCEEDINGS What judgments or decisions can be appealed against? [8.40]

Section 30AA(1) of the FCA states:

Appeals about indictable ffences (1) The Court has jurisdiction to hear and determine an appeal from a judgment of an eligible primary court to the extent the judgment: (a) convicts the accused of a count in the indictment; (b) sentences the accused in relation to a count in the indictment; or (c) acquits the accused of a count in the indictment; or (d) acquits the accused because of mental illness in relation to a count in an indictment; or (e) in the case of a judgment of the Court constituted by a single Judge – consists of one or more orders, determinations or findings under Division 6 or 9 of Part 1B of the Crimes Act 1914. 4 Under s 32(4) the Federal Court also has jurisdiction in relation to “associated matters” which must relate to indictable offences that would not otherwise be within the court’s jurisdiction.: see, eg, Ly v The Queen (2014) 227 FCR 304; 315 ALR 398; [2014] FCAFC 175 at [39].

416

Criminal Appeals and Reviews in Victoria

[8.50]

What is an “eligible primary court”? [8.50]

Section 4 of the FCA defines an eligible primary court as:

(a) the Court constituted by a single judge (ie of the Federal Court) in indictable primary proceedings;5 or (b) the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory);6 or (c) in such cases as are provided by any other Act, a court (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory exercising federal jurisdiction.7

It can be seen that in respect to indictable matters, the Full Court of the Federal Court can hear an appeal in three basic circumstances: • an appeal from a criminal trial held in the Federal Court; • an appeal from a trial or sentence in the Supreme Court of a Territory; and • an appeal from a criminal matter heard by a court of a State or Territory exercising federal jurisdiction (where an Act provides for an appeal to the Federal Court).

Requirement of leave [8.60]

Section 30AB(1) and (2) state:

(1) An appeal under section 30AA cannot be brought from a judgment referred to in subsection 30AA(1) or (2) unless: (a) the Court or a Judge gives leave to appeal; or (b) the appeal involves a question of law alone. (2) An appeal under section 30AA cannot be brought from a judgment or decision of a Judge referred to in subsection 30AA(4) unless that Judge gives leave to appeal.

Right to appeal a conviction [8.70]

Section 30AC(1) and (2) of the FCA state:

5 “Indictable primary proceedings” has a very complex definition: FCA s 23AB. The first meaning is any of the following “events”: (a) the appearance of a party before the Court pursuant to an order committing the accused to stand trial or for sentencing; (b) the filing of an indictment; (c) a prosecution application for extension of time to file the indictment; (d) an application by the accused where the prosecution fail to file the indictment; and (e) a party appears in Court pursuant to a bail order. The other meaning of “indictable primary proceedings” is proceedings for the sentencing of an accused for an indictable offence and “ancillary” proceedings relating to any of the above: FCA s 23AB(2). The focus of these provisions is the serious cartel offences contained in the Competition and Consumer Act 2010 (Cth) ss 44ZZRF and 44ZZRG: FCA s 23AB(4). 6 The Federal Court hears appeals from the Supreme Court of Norfolk Island. An example of an appeal from the Supreme Court of a Territory to the Full Court of the Federal Court is McNeill v The Queen (2008) 168 FCR 198; 248 ALR 710; [2008] FCAFC 80 (murder conviction on Norfolk Island). 7 See, eg, Ly v The Queen (2014) 227 FCR 304; 315 ALR 398; [2014] FCAFC 175 which concerned an appeal from a sentence imposed in the Victorian County Court for offences against the Copyright Act 1968 (Cth) and the Trade Marks Act 1974 (Cth).

[8.90]

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(1) The accused and the prosecutor, in relation to a judgment or decision referred to in section 30AA may: (a) make an application referred to in subsection 30AE(2) or (3) in relation to the judgment or decision; and (b) in accordance with this Division, bring an appeal from the judgment or decision. (2) However, the prosecutor cannot act under subsection (1) in the case of a judgment covered by paragraph 30AA(1)(d).

Through these provisions the accused has a right to appeal the conviction. Except where the appeal is based on a question of law alone, leave of the court is needed before the appeal can be heard. Grounds of appeal [8.80] The FCA does not specify any particular grounds for an appeal against conviction. However, in order to succeed on the appeal the appellant must satisfy the court of one or more of the grounds set out in FCA s 30AJ(1), dealt with immediately below. Test to determine appeal against conviction [8.90] Under FCA s 30AJ(1) and (2) the court must allow an appeal against conviction if satisfied: (a) that the verdict of the jury (if any) should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or (b) that the judgment should be set aside on the ground of a wrong decision of any question of law; or (c) that there has been a substantial miscarriage of justice. (2) However, if the Court is satisfied of a matter in paragraph (1)(a) or (b), the Court may dismiss the appeal if the Court is satisfied that there has not been a substantial miscarriage of justice.

Section 30AJ(2) parallels the common form “proviso” in the other Australian jurisdictions, except for Victoria. There are two points to note about FCA s 30AJ(1). First, the section differs from the common form appeal grounds in that s 30AJ(1)(c) refers to a “substantial” miscarriage of justice whereas the common form provisions provide “or that on any ground there was a miscarriage of justice”. Second, there appears to be an inconsistency between s 30AJ(1)(a) and (2) in that it is difficult to conceive of a situation where the verdict of the jury is “unreasonable” or “cannot be supported having regard to the evidence”, and yet no “substantial” miscarriage of justice has occurred. Section 30AJ(2) seems to envisage the possibility of a non-substantial miscarriage of justice occurring in these circumstances. This was precisely the difficulty which the Victorian Criminal Procedure Act 2009 (Vic) s 276 (discussed in Chapter 1 at [1.630]) has sought to avoid. There is clear

418

Criminal Appeals and Reviews in Victoria

[8.100]

authority for the proposition that if the verdict of the jury is unreasonable or cannot be supported by the evidence, then the only appropriate order is an acquittal.8 Disposition powers on appeal against conviction for an indictable offence [8.100] Under s 30BB of the FCA, if the court allows an appeal against conviction for an indictable offence, the court may: (2) … (a) set aside the conviction (with or without an order for a new trial); or (b) acquit the accused of the count. (3) The Court may substitute a guilty verdict for an offence (the substituted offence) other than the offence to which the appeal relates (the appealed offence) if: (a) an Act allowed the jury to find the accused not guilty of the appealed offence but guilty of the substituted offence; and (b) the Court is satisfied that: (i) the guilty verdict relating to the appealed offence cannot stand; and (ii) the jury must have been satisfied of facts that prove the accused guilty of the substituted offence; and (c) the Court substitutes the guilty verdict in accordance with that other Act. (4) The Court may substitute a guilty verdict for an offence (the substituted offence) other than the offence to which the appeal relates (the appealed offence) if the Court is satisfied that: (a) the Court has jurisdiction to try a person for the substituted offence; and (b) the maximum penalty for the substituted offence does not exceed the maximum penalty for the substituted offence; and (c) the guilty verdict relating to the appealed offence cannot stand; and (d) the substituted offence is covered by the same indictment as the appealed offence; and (e) the jury must have been satisfied of facts that prove the accused guilty of the substituted offence. (5) For a guilty verdict substituted under subsection (3) or (4), the Court may: (a) sentence the accused in relation to the substituted offence; and (b) set aside the conviction and sentence relating to the appealed offence. The accused is taken to be convicted of the substituted offence unless the Court makes an order under section 19B of the Crimes Act 1914 when sentencing the accused for the substituted offence.

These disposition powers essentially mirror those available to Courts of Appeal in the States and Territories. 8 M v The Queen (1994) 181 CLR 487; [1994] HCA 63; R v Klamo (2008) 18 VR 644; 184 A Crim R 262; [2008] VSCA 75 at [38]; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [26].

[8.140]

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Consistent with the practice in other jurisdictions, a judgment of acquittal is likely to be the exception rather than the norm. Alternatively, the court can substitute a verdict of guilty of a different offence if satisfied an Act permitted the jury to find the accused guilty of the substituted offence and the jury must have been satisfied of the substituted offence on the facts. The court can then sentence the accused for the substituted offence and set aside the conviction and sentence for the appealed offence. Alternate basis of appeal by offender: consent of Attorney-General [8.110] An alternative avenue of appeal is in FCA s 30AD, which provides that the (Federal) Attorney-General can consent to an accused appealing a conviction or sentence if the accused satisfies the AttorneyGeneral there is a doubt or question about the judgment.9 No time limit applies to this type of appeal.10 If the appeal is brought under the FCA s 30AD (that is, with the consent of the Attorney-General), the appeal must be allowed if the court is satisfied it would be a miscarriage of justice not to allow it.11 Further, under FCA s 30AJ(5) the court may allow the appeal if satisfied that “it would be a miscarriage of justice not to allow the appeal”.

Appeal against finding of mental illness [8.120] Under FCA s 30AA(1)(d) a person who has been acquitted of an offence on the basis of mental illness at the time of the offence can appeal that finding. This right of appeal is analogous to the right of the accused under Victorian State law to appeal a finding of not guilty on the basis of mental impairment.12 Test to determine appeal against finding of mental illness [8.130] Under FCA s 30AJ(4) the court may allow the appeal if satisfied “it is in the interests of justice to do so”. Orders available on appeal against finding of mental illness [8.140] Under FCA s 30BE, if the court allows an appeal under s 30AA, it may vary or set aside: (a) the order, determination or finding; and (b) any related orders, determinations or findings. 9 This would appear to operate where the court itself refuses to give leave in the particular case, or perhaps where the accused has extinguished all his or her other appeal rights. 10 FCA s 30AF(1). 11 FCA s 30AJ(5). 12 Crimes (Mental Impairment and Unfitness to Stand Trial) Act 1997 (Vic) s 24AA(1), discussed in Chapter 6 at [6.290].

420

Criminal Appeals and Reviews in Victoria

[8.150]

Procedure on conviction appeal Application for leave to appeal [8.150] Except for an appeal based on a question of law alone, the applicant must first obtain leave to appeal. The following flowchart sets out the overall process: Flowchart 8.1 [8.160] Flowchart 8.1 illustrates the process of applying for leave to appeal a conviction or sentence (r = FCR).

Notice of application for leave [8.170] The application for leave is commenced by filing a notice of application for leave to appeal: Form 117.13 The notice must be accompanied by the judgment or order being appealed, the reasons (if published) for the order, an affidavit setting out the facts that support the application, and a draft notice of appeal. If the applicant wants the application to be heard without oral argument, a statement to that effect must also be included.14 13 FCR r 35.12(1). 14 FCR r 35.12(2).

[8.230]

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If the court makes an order that the application is to be heard without oral argument, the parties must file submissions in accordance with Federal Court Rules 2011 (Cth) (FCR) r 35.19.15 Applicable law [8.180] The laws of the Commonwealth and the laws of the State or Territory applicable under the Judiciary Act 1903 (Cth) s 68 and the FCR apply to all appeal procedures.16 Time limits [8.190] The application for leave to appeal must be commenced within 28 days from the date the applicant was sentenced.17 Applying out of time [8.200] Under the FCR the applicant can apply for an extension of time to commence an application for leave to appeal: Form 118.18 The court can extend the time (for filing an application for leave) if satisfied “it is in the interests of justice to do so”.19 If leave to apply out of time is granted, the court can determine the application for leave at the same time.20 Service [8.210] The application for leave to appeal must be served on the respondent within two days of filing the application for leave.21 Service can be effected by either personal service or by delivery to the party’s address for service.22 Who hears the application for leave? [8.220] An application for leave to appeal must be heard by a single judge unless the judge orders that the application be heard by the Full Court.23 Oral hearing or hearing on the papers [8.230] In the notice of application, the applicant can apply to the court for the application to be dealt with without an oral hearing, in which case 15 FCR r 35.18. 16 FCA s 30AH. 17 FCA s 30AF(2) (FCR r 35.13 states it is 14 days). 18 FCR r 35.14. The application must be accompanied by the order, the reasons for the order, an affidavit in support, a draft notice of appeal, and a statement as to whether an oral hearing is required. The notice can be served by personal service or by delivering the documents at the address of the respondent: FCR r 35.16. 19 FCA s 30AF(3). 20 FCR r 35.14. 21 FCR r 35.15. 22 FCR r 35.16. 23 FCA s 30AE(2) and FCR r 35.11.

422

Criminal Appeals and Reviews in Victoria

[8.240]

the application is dealt with by a single judge “on the papers”.24 The respondent can object to the matter not being dealt with by oral hearing: Form 119.25 The court decides whether the application will be on the papers or by oral hearing. File submissions [8.240] If the applicant has elected to have the application dealt with on the papers, FCR r 35.19 requires the parties to file and serve submissions. The submissions must include the title of the proceedings, the name of the party who filed them, reference to the transcript if applicable, and a summary of the facts and the claims to be argued.26 The submissions should not exceed 10 pages in length.27 Withdrawal of application [8.250] The applicant can withdraw the application for leave using Form 120.28 Bail pending appeal [8.260] If the appellant has been sentenced to a term of imprisonment, the appellant can apply to the court to be released on bail pending the determination of the appeal.29 If bail is granted, any time spent on bail does not count as part of the term of imprisonment.30

Hearing of the appeal [8.270] Assuming the applicant has obtained leave to appeal, or the appeal is on a question of law alone, then the appeal will be heard and determined. The following flowchart sets out the overall procedure: Flowchart 8.2 [8.280] Flowchart 8.2 illustrates the steps required in an appeal to the Full Court of the Federal Court (r = FCR).

24 FCR r 35.18. 25 FCR r 35.20. 26 FCR r 35.19. 27 FCR r 35.19. 28 FCR r 35.31. 29 FCA s 30BG(2). 30 FCA s 30AL.

[8.280]

8 Appeals to the Federal Court of Australia

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424

Criminal Appeals and Reviews in Victoria

[8.290]

Notice of appeal [8.290] An appeal (against conviction or sentence) is commenced by filing a notice of appeal: Form 122.31 The notice must state the grounds of appeal, the orders sought, a copy of the order granting leave to appeal, and an address for service.32 The notice is filed in the relevant District Registry.33 Time limit [8.300] The notice of appeal must be filed within 21 days from the date leave to appeal was granted or from the date of the judgment being appealed.34 Filing out of time [8.310] An appellant can apply for leave to extend the time required for filing the notice of appeal: Form 67.35 The application is heard by a single judge.36 Registrar sets hearing date [8.320] After the notice of appeal is filed, the registrar sets a date for a directions hearing and endorses the date on the notice of appeal.37 Service [8.330] The appellant must serve a copy of the notice of appeal on the respondent by either personal service or by delivery to the respondent’s address for service.38 Objection to appeal [8.340] The respondent can object to the competency of the appeal within 14 days after service of the notice of appeal: Form 125.39 Cross-appeal [8.350] The respondent can file and serve a notice of cross-appeal within 21 days from the date of service of the notice.40 31 FCR r 36.01(1). 32 FCR r 36.01. 33 FCR r 36.02. 34 FCR r 36.03. 35 FCR r 36.05. 36 FCR r 36.05. 37 FCR r 36.02. 38 FCR r 36.04(1). 39 FCR r 36.72. The applicant has the burden of establishing the competency of the appeal. 40 FCR r 36.02.

[8.380]

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Stay [8.360] An appeal does not operate as a stay of execution or a stay of any proceedings under the judgment which is the subject of the appeal.41 However, the appellant can apply to the court for an order for a stay of the relevant judgment until the appeal is heard.42 Appeal book [8.370] The appeal book must be prepared strictly in accordance with Div 36.5 of the FCR, which requires the appellant to file four copies.43 The appeal book consists of three Parts, A, B and C.44 Part A consists of the “Core set of Standard Items”.45 These include the title, index, originating application, notice of appeal and notice of leave to appeal. Part B is the “Comprehensive Reference Index” and consists of a complete index to the record of the court below, exhibits, affidavits, transcript, chronology and index of the transcript. Part C comprises the exhibits and evidence referred to, as well as the parties’ submissions and chronology.46 Within seven days of the notice of appeal being served, the appellant can request the assistance of the registrar to settle the index.47 If the appellant does not seek the assistance of the registrar, then within 28 days of the notice of appeal being served, the appellant must submit to the registrar a draft of the index to Parts A and B of the appeal book.48 The registrar then settles the index and advises the applicant of his approval of Parts A and B. Within 14 days of the registrar’s approval, the appellant must file and serve on the respondent Parts A and B of the appeal book.49 Application to receive further evidence [8.380] If the appellant wishes to adduce additional evidence at the hearing of the appeal, he or she must give notice 21 days prior to the hearing.50 The notice must be accompanied by an affidavit setting out the facts, the additional evidence and the reasons why the material was not adduced at the original hearing.51 41 FCR r 36.08(1). 42 FCR r 36.08(2) and FCA s 30AK. 43 FCR r 35.51. 44 FCR r 35.51(3). 45 FCR rr 35.51 – 36.54. 46 FCR r 35.54(b)(i). 47 FCR r 36.52. 48 FCR r 36.52. 49 FCR r 36.52(4). 50 FCR r 36.57. Section 27 of the FCA allows the court to receive additional evidence. 51 FCR r 36.57.

426

Criminal Appeals and Reviews in Victoria

[8.390]

Applicant files submissions [8.390] Within 20 days from the hearing the appellant must file an outline of submissions and a chronology.52 The contents of the written submissions are set out in r 36.42 of the FCR. The submissions must not exceed 10 pages. Respondent files submissions [8.400] Within 15 days before the hearing, the respondent must file and serve an outline of submissions and a chronology, together with a list of any material it requires to be included in Part C of the appeal book.53 Applicant files reply [8.410] Within 10 days before the hearing, the appellant must file and serve a reply to the respondent’s outline of submissions.54 File and serve Part C of appeal book [8.420] Five days before the hearing, the appellant must file and serve Part C of the Appeal book.55 Abandonment of appeal [8.430] The appellant can abandon an appeal: Form 126.56 The appeal can be abandoned without leave any time prior to the hearing, but leave is required if the appeal is abandoned after the hearing has commenced.57 Report of trial judge [8.440] On an appeal against conviction or sentence the court may request the judge of the Supreme Court of the Territory whose judgment or order is being appealed, to provide a report to the registrar on any aspect arising in the case.58 Attendance of appellant [8.450] If the appellant is in custody at the time of the appeal, the appellant can apply to the court for an order requiring his or her presence at the hearing.59 52 FCR r 36.55(2). See Practice Note APP 2 s 5. 53 FCR r 36.55(2). 54 FCR r 36.55(2). 55 FCR rr 36.55(3) and 36.56. 56 FCR r 36.73. 57 FCR r 36.73(1). 58 FCR r 37.01. 59 FCR r 37.02.

[8.500]

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Nature of appeal hearing [8.460] On hearing the appeal, the court must have regard to the evidence that was adduced at the original hearing, may draw inferences of fact, and may, if satisfied it is “in the interests of justice” to do so, receive further evidence – for example, on affidavit, video link or oral examination.60 Thus, the hearing is a rehearing, as distinct from a de novo hearing.61 Costs on successful appeal [8.470] The general principle is that no costs are awarded on a criminal appeal.62 This is consistent with the principle applicable to appeals under State law, discussed in Chapter 6. However, if an applicant withdraws an application for leave to appeal, the applicant must pay the costs of the respondent.63 If the appellant abandons an appeal, the appellant must pay the respondent’s costs, unless otherwise agreed between the parties.64

Right of crown to appeal a finding of “no case” [8.480] Under FCA s 30AA(1)(c), the court has jurisdiction to determine an appeal from a judgment to the extent the judgment: “acquits the accused of a count in an indictment as a result of the court (rather than a jury) finding that the accused had no case to answer”. Section 30AA(1)(c) is a significant, but not unique, provision because it extends the common law scope of Crown appeal rights.65 Recall from Chapter 5 of this book (at [5.40]) that in Victoria an interlocutory decision does not include the decision of the trial judge to find a “No Case” to answer: DPP v Singh.66 It is important to emphasise, however, that under FCA s 30AA(1)(c) the prosecution cannot appeal the verdict of a jury to acquit the accused. Test to determine appeal against finding of no case [8.490] Under s 30AJ of the FCA the court must allow the appeal if satisfied that “it is in the interests of justice to do so”. Disposition orders on successful Crown appeal against finding of no case [8.500] Under s 30BD of the FCA, if the court allows a Crown appeal under s 30AA(1)(c) the court may: “(a) set aside the acquittal; and (b) order that there be, or not be, a new trial”. 60 FCA s 30AI. 61 Lai-Ha v McCusker (2000) 101 FCR 460; [2000] FCA 1173 at [10]. 62 FCA s 30DA. 63 FCR r 36.73(4). 64 FCR r 35.31(4). 65 In Western Australia the DPP can appeal an acquittal of a trial judge pursuant to s 24(2)(e)(ii) of the Criminal Appeals Act 2004 (WA): Western Australia v Rayney [2012] WASC 404. 66 DPP v Singh (2012) 4 VR 364; [2012] VSCA 167 at [7].

428

Criminal Appeals and Reviews in Victoria

[8.510]

Appeal against sentence for indictable offence Right to appeal [8.510] Under s 30AA(1)(b) of the FCA, the court has jurisdiction to hear and determine an appeal against a sentence imposed in proceedings on indictment. The applicant must first obtain leave to appeal, unless the appeal is on a question of law alone.67 Under s 30AC of the FCA, the person convicted has a right to apply for leave to appeal and to bring an appeal against the sentence. Test to determine appeal against sentence [8.520] Pursuant to FCA s 30AJ(3), the court must allow an appeal against sentence (brought under FCA s 30AA) if satisfied: “that some other sentence (whether more or less severe) is warranted in law”. This test differs from the equivalent statutory test under Victorian State law where, under s 278 of the Criminal Procedure Act 2009 (Vic), the court will not interfere in a sentence unless it is also satisfied that there is an error in the sentence. Section 30AJ(3) of the FCA seems to imply that the court has an unfettered discretion to change the sentence. However, it is well established that at common law an appeal court must first be satisfied that there is an error in the sentence imposed.68 Arguably, if the Federal Court finds some other sentence is warranted then, by implication, some type of error must have occurred in the original sentence. Disposition powers [8.530] Under FCA s 30BC(2), if the court allows an appeal against sentence, the court may: (a) increase or decrease the sentence; or (b) substitute a different sentence; or (c) in the case of an appeal against a judgment in which one or more orders were made under subsection 19B(1) of the Crimes Act 1914: (i) vary or set aside any or all of the orders; or (ii) set aside the orders, record a conviction of the accused and sentence the accused.

Procedure on sentence appeal [8.540] The general procedural rules for obtaining leave to appeal a conviction will also apply to an application for leave to appeal a sentence. The general procedural rules for the hearing of the appeal against sentence will also follow the procedure for the hearing of an appeal against conviction. 67 FCA s 30AB. 68 House v The King (1936) 55 CLR 499; [1936] HCA 40; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [65]. See also A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Lawbook Co., Sydney, 2015) at [17.70].

[8.580]

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The application for leave to appeal will, in general, be heard and determined by a single judge69 and the appeal will be heard and determined by the Full Court of the Federal Court.70 Case study of appeal against sentence in indictable matter [8.550] In Ly v The Queen the appellant had been convicted and sentenced in the County Court of Victoria for offences under the Copyright Act 1968 (Cth) and the Trademarks Act 1974 (Cth).71 The appellant appealed to the Full Court of the Federal Court. The Federal Court noted that the appeal could be brought under s 30AA(1)(b) of the FCA since the Victorian County Court was an “eligible court”. The Copyright Act 1968 (Cth) s 131B(2)(a) also confers jurisdiction on the Federal Court (but not the Victorian Court of Appeal) to determine the appeal. The appeal in respect to the sentence for the offences under the Trademarks Act 1974 (Cth) could be brought pursuant to the Federal Court’s “associated jurisdiction” conferred by s 32 of the FCA.72 The Federal Court also noted the appellant was required to obtain leave to appeal, which the court granted. The court upheld the appeal and re-sentenced the appellant.

DPP Appeal against sentence Jurisdiction to hear appeal [8.560] The Full Court of the Federal Court has jurisdiction to hear and determine a Crown appeal against sentence pursuant to FCA s 30AA(1)(b). This section does not distinguish between an appeal by the offender and a Crown appeal. Leave of the court is required before the appeal can be heard unless the appeal is brought on a question of law alone.73 Right to appeal [8.570] Section 30AC(1) of the FCA states that “[t]he accused and the prosecutor” may apply for leave to appeal and to appeal. Test to determine appeal against sentence [8.580] Pursuant to FCA s 30AJ(3), the court must allow an appeal against sentence (brought under FCA s 30AA) if satisfied: “that some other sentence (whether more or less severe) is warranted in law”. This test also differs from the equivalent statutory test under Victorian State law. Under the Criminal Procedure Act 2009 (Vic) s 281 the court will not interfere in a sentence unless it is also satisfied that there is an error in the sentence. Nevertheless, if the Federal Court finds some other sentence is warranted then, by implication, some type of error must have occurred in the original sentence. 69 FCA s 30AE(2). 70 FCA s 30AE(1). 71 Ly v The Queen (2014) 227 FCR 304; 315 ALR 398; [2014] FCAFC 175. 72 Le v The Queen (2007) 74 IPR 1; [2007] FCA 1463 at 4-5 (IPR). 73 FCA s 30AB(1).

430

Criminal Appeals and Reviews in Victoria

[8.590]

Disposition powers on appeal against sentence [8.590] Under FCA s 30BC(2), if the court allows an appeal against sentence the court may: (a) increase or decrease the sentence; or (b) substitute a different sentence; or (c) in the case of an appeal against a judgment in which one or more orders were made under subsection 19B(1) of the Crimes Act 1914: (i) vary or set aside any or all of the orders; or (ii) set aside the orders, record a conviction of the accused and sentence the accused.

Appeals against bail, forfeiture of bail and interim orders and judgments [8.600] Under FCA s 30AA(3) and (4), a person can appeal against a bail decision and interim judgments. If the court allows an appeal brought under s 30AA(3) or (4), the court may in every case set aside the judgment or decision, vary the appealed decision and substitute a new judgment or decision, and make orders for custody or bail.74 If the court allows an appeal under s 30AA(4), it can make orders regarding the cessation or continuation of the proceedings.75 These are clearly very broad and sweeping powers designed to provide flexibility to deal with the plethora of circumstances covered by these appeals.

Case stated [8.610]

Section 30CA(1) of the FCA provides:

A court in proceedings from which appeals lie under section 30AA (other than proceedings covered by subsection (2)) may state any case or reserve any question concerning a matter with respect to which such an appeal would lie for consideration of the Court.76

A “Case Stated” is a written statement of the facts in a proceeding, agreed to by the parties so that the court to which the case is stated may decide the question in issue. To “reserve any question” is to state the question of law that has arisen from the facts.77 As discussed in Chapter 6 of this book (at [6.1390]), the primary purpose of a Case Stated is to help the trial judge and the parties by answering a key question of law. The answer to the question of law may help reduce the length of the trial or, in some cases, obviate the need for a trial. In a sense, a Case Stated operates as a form of interlocutory appeal. If the 74 FCA s 30BG(2). 75 FCA s 30BG(3). 76 A single judge of the Federal Court hearing an appeal from a summary matter can also state a case for the Full Court of the Federal Court: FCA s 25(6). 77 FCR r 38.01 Note 1.

[8.620]

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court stating the case or reserving a question is not a court of summary jurisdiction, the Full Court of the Federal Court must determine the Case Stated or question reserved.78 Provision is also made for a State or Territory court (which is empowered to both commit an accused to stand trial and to state a case) to state a case or reserve a question of law for consideration by the Federal Court, rather than the superior court of the jurisdiction where the proceedings are held. In these circumstances, the Case Stated is determined by a single judge of the Federal Court.79 The Case Stated or a question of law reserved must be in the form of a “special case”.80 The special case must consist of consecutively numbered paragraphs and state the facts briefly, but specifically, and attach all documents necessary for the court to be able to answer the question posed.81 The party having carriage of the case is responsible for preparing a draft of the special case, which the primary court then settles.82 Under Victorian State law a Case Stated can only be on a question of law, not a question of fact.83

DPP Referral of question of law [8.620]

Under s 30CB of the FCA:

(1) If a judgment of the Court acquits a person following a trial on indictment for an indictable offence, the prosecutor may apply to the Court or a judge for leave to refer a question of law arising from the judgment to a Full Court for its determination. (2) If leave is granted, both the prosecutor and the acquitted person may make submissions to the Full Court in relation to the Court’s determination of the question of law. (3) A determination made by the Court on the question of law does not affect the person’s acquittal. (4) The Court may make orders to ensure each party to proceedings under this section is adequately represented in those proceedings.

This parallels the same procedure provided for in the Victorian Criminal Procedure Act 2009 (Vic) s 308 (discussed in Chapter 6 of this book at [6.1490]) for the Director of Public Prosecutions to refer a matter to the Victorian Court of Appeal. Further sources Federal Court of Australia, Practice Note APP 2, “Content of Appeal Books and Preparation for Hearing” (2013). 78 FCA s 30CA(4). 79 FCA s 30CA(4)(b). 80 FCR r 38.01(1). 81 FCR r 38.01(2). 82 FCR r 38.02. 83 Criminal Procedure Act 2009 (Vic) s 302(1).

432

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[8.630]

PART B: APPEALS FROM SUMMARY PROCEEDINGS Federal Court of Australia [8.630] In addition to its appellate jurisdiction in respect to proceedings on indictment, the Federal Court also has jurisdiction in respect to appeals from summary criminal proceedings.

Jurisdiction [8.640]

Section 30AA(2) of the FCA states:

The Court has jurisdiction to hear and determine an appeal from a judgment of: (a) the Court constituted by a single judge; (b) the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory); or (c) in such cases as are provided by any other Act, a court (other than the Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory exercising federal jurisdiction; in proceedings to try an offence summarily.

These appeals must be heard and determined by a single judge, unless the judge thinks the matter should be dealt with by the Full Court of the Federal Court.84 A judgment includes a conviction, sentence, acquittal, or any other decree or order, whether final or interlocutory.85

Leave to appeal [8.650] Under FCA s 30AB, appeals concerning summary judgments require leave of the Court unless the appeal concerns a question of law alone. An application for leave to appeal or to extend time to appeal, to amend the grounds of an appeal, or to stay an order of the Full Court are heard by a single judge of the Federal Court, unless the judge otherwise directs.86

Who can appeal? [8.660] may:

Under s 30AC of the FCA both the prosecution and the accused

(a) make an application referred to in subsection 30AE(2) or (3) in relation to the judgment or decision; and (b) in accordance with this Division, bring an appeal from the judgment or decision. 84 FCA s 25(5). 85 FCA s 3. 86 FCA s 30AE(2).

[8.720]

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Right to appeal conviction imposed in summary proceedings [8.670] Under FCA s 30AA(2), the court can hear an appeal from a summary conviction since “judgment” includes a conviction. The convicted person can make an application for leave to appeal under s 30AC(1) of the FCA. Test to determine appeal against conviction [8.680] Under FCA s 30AJ(1) and (2) the court must allow an appeal against conviction if satisfied: (1) … (a) that the verdict of the jury (if any) should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or (b) that the judgment should be set aside on the ground of a wrong decision of any question of law; or (c) that there has been a substantial miscarriage of justice. (2) However, if the Court is satisfied of a matter in paragraph (1)(a) or (b), the Court may dismiss the appeal if the Court is satisfied that there has not been a substantial miscarriage of justice.

Disposition powers on successful appeal against conviction [8.690] Under s 30BF(2) of the FCA, if the court allows an appeal against conviction, the court may set aside the conviction and: “(a) record an acquittal; or (b) remit the matter to the Judge for further hearing (with or without directions), or to a different judge for a new hearing (with or without directions)”.

Appeal against sentence in summary proceeding Right to appeal [8.700] A person convicted in summary proceedings can appeal the sentence pursuant to s 30AC of the FCA. Test to determine appeal [8.710]

Under s 30AJ(3) of the FCA:

The Court must allow an appeal under section 30AA from a judgment sentencing the accused if the Court is satisfied that some other sentence (whether more or less severe) is warranted in law.

Disposition powers on appeal against sentence [8.720] Under s 30BF of the FCA, if the court upholds the appeal against sentence the court may: “(a) increase or decrease the sentence; or (b) substitute a different sentence”,

434

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[8.730]

If the appeal is against a sentence imposed under the Crimes Act 1914 (Cth) s 19B, the court can vary or set aside the order and record a conviction and sentence the offender.87

Appeal against acquittal in summary proceedings [8.730] Under s 30AA(2) of the FCA the prosecution can appeal an acquittal in summary proceedings since an acquittal is a judgment. Section 30BF(5) of the FCA also recognises an appeal against acquittal. Test to determine appeal against acquittal [8.740] Section 30AJ(4) of the FCA simply states that the court shall allow other appeals if satisfied it is “in the interests of justice” to do so. This gives the appeal court a very broad discretion. Disposition powers on appeal against acquittal [8.750] Under s 30BF of the FCA, if the court upholds an appeal against an acquittal, the court may set aside the acquittal and: “(a) record a conviction; or (b) remit the matter to the Judge (with or without directions), or to a different Judge for a new hearing (with or without directions)”.

Procedure on appeals from summary proceedings [8.760] In general, the procedure for appeals in respect to indictable proceedings applies to appeals from summary proceedings. However, the applicant only needs to file two copies of the appeal book, not four copies.88 The following sets out some of the main provisions. Time limit [8.770] An application for leave to appeal, or a notice of appeal, must be brought before the end of 28 days after (in the case of a conviction appeal) the day the accused is sentenced and, in the case of a sentence appeal, the day the accused is sentenced. Right to attend [8.780] A party to the appeal is entitled to be present at the hearing unless the court otherwise orders.89 Applicable laws [8.790] The laws of the Commonwealth, the laws of a State or Territory under the Judiciary Act 1903 (Cth) s 68(1) and the FCR apply to appeal proceedings.90 87 FCA s 30BF(4). 88 FCR r 36.51(1). 89 FCA s 30AG. 90 FCA s 30AH.

[8.820]

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Evidence on an appeal [8.800] An appeal is not conducted as a de novo appeal. Rather, it is in the form of a rehearing in that the court must have regard to evidence given in the original proceedings and may draw inferences of fact and may (if satisfied it is in the interests of justice) permit further evidence to be given.91 If further additional evidence is permitted, such evidence may be presented to the Full Court, in the form of an affidavit, by video link or by oral examination before the court.92 Case study of appeal against summary conviction and sentence [8.810] In Lai-Ha v McCusker the appellant had been convicted and sentenced in the New South Wales Local Court of offences under the Copyright Act 1968 (Cth).93 The appellant appealed the convictions and sentences to a single judge of the Federal Court. The court held that it has jurisdiction pursuant to s 24 of the FCA (that is, prior to the 2009 reforms) and that the appeal was not a de novo appeal, but rather a rehearing where additional evidence could be adduced.94 The court dismissed all appeals and ordered the appellant to pay costs.

PART C: APPEALS IN FEDERAL EXTRADITION PROCEEDINGS Introduction [8.820] Extradition is the process whereby law enforcement authorities in one jurisdiction apprehend a person and send that person back to another jurisdiction to face criminal charges or to serve a sentence. Extradition within the States and Territories of Australia (national extradition) is governed by the Service and Execution of Process Act 1992 (Cth).95 Extradition between Australia and other countries (international extradition) is governed by the Extradition Act 1988 (Cth) (hereafter “EA”), regulations made under that Act and treaties annexed to those regulations. International extradition is a staged process, with administrative decisions made at each stage by different decision-makers potentially being subject to challenge. In general terms there are four parts to the international extradition process. These are: (a) the issue of a provisional arrest warrant under EA s 12(1) and the giving of a notice under EA s 16(1); (b) deciding on either remand in custody or grant of bail to enable relevant 91 FCA s 30AI. 92 FCA s 30AI(1)(c). 93 Lai-Ha v McCusker (2000) 101 FCR 460; [2000] FCA 1173. 94 Lai-Ha v McCusker (2000) 101 FCR 460; [2000] FCA 1173 at [15], [16]. 95 The authors are indebted to Shannon Cuthbertson, Deputy General Counsel (Operations and CT) Australian Federal Police and David Reed, Director, Litigation, International Crime Cooperation Authority, Commonwealth Attorney-General’s Department for the provision of information relating to the extradition process.

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[8.830]

proceedings to be conducted; (c) determination by a magistrate under EA s 19 that the person is eligible for surrender, or the person consents to extradition, or waives extradition; and (d) determination by the AttorneyGeneral or Minister that the person is to be extradited (EA s 22). The Federal Court has sole jurisdiction to review international extradition matters.96 Although such reviews are administrative law proceedings and are not criminal appeals of the sort discussed in this book, international extradition does concern criminal offences97 and, importantly, the human rights of the person subject to extradition. For these reasons, a brief discussion of extradition appeals is included in this chapter.98 Extradition review proceedings predominantly involve administrative law and international law issues.99 The following flowchart sets out the basic extradition process. Flowchart 8.3 [8.830]

Flowchart 9.3 illustrates the extradition process.

96 The Extradition and Mutual Assistance in Criminal Law Matters Legislation Amendment Act 2012 (Cth), which came into force on 20 September 2012, removed the jurisdiction of State and Territory Supreme Courts to hear appeals under the Extradition Act 1988 (Cth). 97 The extradition process does not, however, involve any assessment of the guilt or innocence of the person: Vasiljkovic v Commonwealth (2006) 227 CLR 614; [2006] HCA 40. 98 The EA has separate provisions for extradition to and from New Zealand. For the purposes of this chapter, only the provisions relating to extradition to and from a country other than New Zealand are covered. 99 See, eg, Commonwealth Minister for Justice v Adamas (2013) 253 CLR 43; [2013] HCA 59.

[8.840]

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** A person may seek review of this decision under the Judiciary Act 1903 (Cth) s 39B and the Constitution s 75(v).

Review decision of magistrate regarding eligibility for surrender [8.840] Under s 19 of the EA, the magistrate must determine if the person who is the subject of the extradition proceedings is eligible for surrender to the requesting extradition country (subject to the person’s right to waive, or consent to, extradition). The magistrate can make an order under EA s 19(9) that the person is eligible to be extradited, or make a decision under EA s 19(10) that the person is not eligible to be extradited. The magistrate is not sitting as a judicial officer, but is

438

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[8.850]

exercising Commonwealth executive power in his or her personal capacity (persona designate)100 and, as such, the decision-making at the s 19 stage is founded in administrative law principles. When the accused is first brought before a magistrate, the magistrate must not grant bail unless there are “special circumstances”.101 This decision of the magistrate can be subject to judicial review. Under s 21(1) of the EA the person or the requesting country can apply to the Federal Court for a review of the magistrate’s order. The application for a review must be made within 15 days of the order.102 The review is conducted by a single judge of the Federal Court. The judge can either confirm the order or quash it. If the review was of the decision that the person is eligible for surrender, and the order is quashed, the court must order the release of the person or the discharge of the recognisance on which bail was granted.103 If the review was of a decision that the person is not eligible for surrender, and the order is quashed, the court must order that the person be committed to prison or be released on bail to await surrender under a surrender warrant.104

Further appeal to Full Court of Federal Court [8.850] The person or the extradition country can appeal the decision of the single judge to the Full Court of the Federal Court, regardless of whether the person or the country was the first appellant.105 The appeal must be brought within 15 days of the original order.

Further appeal to High Court [8.860] A final application for leave to appeal the decision of the Full Court of the Federal Court to the High Court is available, but the High Court “shall not grant special leave” if the application for special leave is made more than 15 days after the order of the Full Court of the Federal Court.106

Admissible evidence on reviews and appeals [8.870] On an application for review in the Federal Court, or an appeal to the Full Court of the Federal Court, or on application to the High Court, the court hearing the application or the appeal “shall have regard 100 EA s 45B. 101 EA s 15(6). See Schoenmakers v DPP (1991) 30 FCR 70 at 74; United Mexican States v Cabal (2001) 209 CLR 165; see also G Hampel, D Gurvich and S Braun, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015) pp 98–101. 102 EA s 21(1). 103 EA s 21(2A)(a). 104 EA s 21(2A)(b). The person must not be released on bail unless there are special circumstances: EA s 21(2B). 105 EA s 21(3). 106 EA s 21(5).

[8.880]

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only to the material that was before the magistrate or judge”.107 This indicates that the hearing is not a de novo hearing or an appeal stricto sensu, but rather a classic example of a rehearing based on the material before the original court. The review court examines all the material that was before the original decision-maker and comes to its own conclusions.108 On a review, the task of the judge is to determine whether the decision of the magistrate was right or wrong and, if wrong, what decision should have been made.109 A number of cases have discussed the nature of an EA s 21 review.110 Section 21A of the EA deals with the possible admission of new or fresh evidence on the review or appeal. Section 21A(2) states that if a party to the relevant proceedings under s 19 was prevented from adducing evidence (the excluded evidence), and the review court considers that the party should have been permitted to adduce the evidence, the review court may receive the excluded evidence, and any further evidence that relates to the excluded evidence.111

Judicial review of extradition decision [8.880] In addition to the above statutory rights of review and appeal, judicial review seeking one of the prerogative writs is also available in respect of some extradition decisions. The judicial review can seek a writ in the nature of mandamus, prohibition or an injunction. For example, judicial review would be available in respect of the decision of the Attorney-General or Minister to issue a notice to a magistrate under s 16 of the EA that an extradition request has been received from the requesting country. Where the Attorney-General or the relevant Minister makes a decision to extradite a person (EA s 22) and to issue a surrender warrant (EA s 23), the person can apply for judicial review of the decision to the Federal Court. The Federal Court has jurisdiction to hear the application pursuant to the Judiciary Act 1903 (Cth) s 39B(1A) and the FCA ss 19, 21 and 23. 107 EA s 21(6)(d). 108 Brock v United States of America (2007) 157 FCR 121; [2007] FCAFC 3 at [22]. 109 Pasini v United Mexican States (2012) 209 CLR 246. 110 See, eg, Republic of South Africa v Dutton (1997) 77 FCR 128 at 136; Von Arnim v Federal Republic of Germany (1999) 107 A Crim R 529 at 532; Rahardja v Republic of Indonesia [2000] FCA 639 at [3]; Cabal v United Mexican States (No 3) (2000) 186 ALR 188 at [108] and [118]–[125]; and Cabal v United Mexican States (2001) 108 FCR 311 at [100]–[104]. 111 If a document contains a minor deficiency, the review court must adjourn the proceedings to enable the deficiency to be rectified: EA s 21A(3). The person to whom the proceedings relate is not permitted to adduce evidence under EA s 21A to contradict an allegation that the person has committed an extradition offence: EA s 21A(4).

440

Criminal Appeals and Reviews in Victoria

[8.890]

Case examples of judicial review [8.890] It is not surprising that decisions made during the international extradition process have produced a considerable body of case law dealing with a plethora of issues. The following examples, from 2014 and 2015 alone, illustrate the range of issues that can arise: • the nature of a review (under EA s 21 of the decision of a magistrate under EA s 19: Kalinovas v Republic of Lithuania;112 • the meaning of “warrant issued by extradition country for the arrest of the person for the offence”: Kommatos v Hellenic Republic;113 • the scope of procedural fairness – for example, whether the decision of the Minister was made “as soon as reasonably practical” under EA s 22(2): Hala v Minister for Justice;114 and whether an applicant is entitled to comment upon the extradition country’s response to the applicant’s submissions: Hala v Minister for Justice;115 Sneddon v Minister for Justice;116 • whether the EA applies to extradition decisions: Kalinovas v Republic of Lithuania;117 • whether the Minister applied the wrong test for determining surrender under EA s 22(3)(b): Francuziak v Minister for Justice;118 Lobban v Minister for Justice;119 and • whether the decision of the Minister was “unreasonable”: Francuziak v Minister for Justice;120 Lobban v Minister for Justice.121

112 Kalinovas v Republic of Lithuania [2015] FCA 961. 113 Kommatos v Hellenic Republic [2014] FCAFC 13. 114 Hala v Minister for Justice (2015) 145 ALD 552; [2015] FCAFC 13. 115 Hala v Minister for Justice [2015] HCSL 133. 116 Sneddon v Minister for Justice [2015] HC Trans 120. 117 Kalinovas v Republic of Lithuania [2015] FCA 961. 118 Francuziak v Minister for Justice [2015] FCA 464 (Confirmed on appeal to Full Court of the Federal Court: Francuziak v Minister for Justice [2015] FCAFC 162). 119 Lobban v Minister for Justice [2015] FCA 1361. 120 Francuziak v Minister for Justice FCA 464 (Confirmed on appeal to Full Court of the Federal Court: Francuziak v Minister for Justice [2015] FCAFC 162). 121 Lobban v Minister for Justice [2015] FCA 1361.

Chapter 9

Appeals to the High Court [9.10] Introduction ......................................................................................................................... 441 [9.20] Unique appellate role of the High Court ....................................................................... 442 [9.30] The appellate jurisdiction of the High Court ................................................................ 442 [9.40] Who can appeal? ................................................................................................................. 443 [9.80] The original jurisdiction of the High Court ................................................................... 446 [9.90] Requirement to obtain special leave to appeal: Judiciary Act 1903 .......................... 446 [9.100] Test to determine special leave to appeal .................................................................... 447 [9.110] Test for determining appeal ............................................................................................ 449 [9.120] Orders available on successful appeal .......................................................................... 449 [9.140] Procedure on application for special leave to appeal ................................................ 451 [9.550] Hearing of the appeal ...................................................................................................... 469 [9.590] Other appeals to the High Court ................................................................................... 470 [9.610] Appendix 1: Snapshot of Criminal Appeals to High Court January 2012–30 August 2016 ......................................................................................... 473 [9.640] Appendix 2: Sample Forms ............................................................................................ 475

Introduction [9.10] This chapter sets out the law governing appeals to the High Court in criminal matters.1 This includes appeals against conviction, appeals against sentence, and Crown appeals against sentence. Other types of applications and referrals are also discussed. One of the key features of a criminal appeal to the High Court is the need for the applicant to first obtain “special” leave to make the appeal. In general, it is very difficult to obtain special leave to appeal to the High Court because of the stringency of the statutory criteria for a grant of special leave. The stringency of the test for granting special leave to appeal reflects the unique role of the High Court as the ultimate supervisor of appellate courts in Australia, and distinguishes the High Court from appellate courts in the States and Territories. 1 The High Court is the product of s 70 of the Constitution, which states: “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the parliament creates, and in such other courts as it invests with federal jurisdiction.” The title “Federal Supreme Court” reflects that the High Court is a federal or Commonwealth judicial body, has jurisdiction in respect to Commonwealth, State and Territory matters, and is the ultimate or supreme appellate court in Australia.

442

Criminal Appeals and Reviews in Victoria

[9.20]

Unique appellate role of the High Court [9.20] Whilst the High Court is a court of appeal, it plays a different role from the courts of appeal of the States and Territories. As a federal or national body, the High Court provides guidance for all courts in Australia and contributes to the development of a coherent and consistent set of principles and approaches nationwide. Although it will be concerned with the issues and consequences in the individual case under appeal, the High Court is also concerned with the much broader dimensions of the questions raised in the appeal. In order for the High Court to hear and determine an appeal in a criminal matter, one or more grounds of the appeal must have some importance for the overall administration of criminal justice in Australia.2 The nature of that importance will vary with each case, but this particular role affects the way in which the High Court decides which cases to hear on appeal. In sentencing cases for example, the High Court has said that it is not a “sentencing court”.3 In other words, assuming an appeal against sentence is successful, the High Court will not normally determine the precise sentence that should be imposed on a person – that is a matter for the intermediate court of appeal. Rather, the High Court will determine if the approach taken to the sentence by the court of appeal below was the correct approach, and if it was not the correct approach, then the matter can be remitted back to the court of appeal below for resentencing in accordance with the correct approach. Unlike the courts of appeal in the States and Territories, the High Court has no power to receive fresh evidence.

The appellate jurisdiction of the High Court [9.30] The High Court has a very extensive appellate jurisdiction. Section 73 of the Constitution provides that the High Court has jurisdiction to hear and determine: appeals from all judgments, decrees, orders and sentences: (i) of any Justice or Justices exercising the original jurisdiction of the High Court: (ii) of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; (iii) of the Inter-State Commission, but as to questions of law only; and the judgment of the High Court in all such cases shall be final and conclusive.

2 Liberato v The Queen (1985) 159 CLR 507 at 509. 3 CMB v Attorney-General NSW (2015) 317 ALR 308; [2015] HCA 9 at [39].

[9.40]

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Thus, the High Court has jurisdiction to hear appeals in relation to any federal, State or Territory criminal matter, including a sentence.4 Although there is some debate as to the meaning of “sentence” in the opening words of s 73 of the Constitution, there is no doubt that the High Court has jurisdiction to hear and determine appeals against sentence, as a sentence is a judgment or order of a court.5 In Appendix 1 to this chapter, a summary of all criminal cases decided by the High Court from January 2012 to 30 August 2016 is provided. This shows the diverse range of criminal matters dealt with by the High Court. The High Court also has jurisdiction to hear and determine an appeal from a decision of the Supreme Court of Nauru.6 Further, the High Court has its own internal appeal structure in that the Full Court of the High Court can hear an appeal from a decision of a single justice of the High Court.7

Who can appeal? [9.40] Any party to an appeal to the Court of Appeal of a State or Territory who is dissatisfied with the decision or orders made by the particular court can apply for special leave to appeal to the High Court. Thus, if an appeal against conviction or sentence is dismissed by the relevant State or Territory Court of Appeal, the dissatisfied appellant can apply for special leave to appeal the orders dismissing the appeal. Alternatively, the respondent to a successful appeal against conviction or sentence (usually the Director of Public Prosecutions (DPP) or the Attorney-General) can also apply for leave to appeal the orders of the relevant Court of Appeal to the High Court.

4 The federal Parliament can pass laws affecting appeals from federal courts to the High Court. See, eg, the Federal Court of Australia Act 1976 (Cth) s 33 The federal Parliament can also pass laws affecting appeals to the High Court from State courts exercising federal jurisdiction: see, eg, the Copyright Act 1968 (Cth) s 131B(2)(a). 5 See M Kirby, “The Mysterious Word “Sentences” in s 73 of the Constitution” (2002) 76 ALJ 97. 6 Nauru (High Court Appeals) Act 1976 (Cth) and High Court Rules 2004 (Cth) (HCR) Pt 43. See, eg, Diehm v DPP (Nauru) (2013) 303 ALR 42; [2013] HCA 42. 7 The Judiciary Act 1903 (Cth) s 34(1) provides that the High Court has jurisdiction to hear and determine an appeal from all judgments whatsoever of any justice exercising the original jurisdiction of the High Court whether in court or in Chambers. If the appeal concerns an interlocutory judgment, leave of the High Court is required before the appeal will be heard: Judiciary Act 1903 (Cth) s 34(2). The requirement of leave in s 34(2) is designed to prevent unnecessary fragmentation of proceedings that can arise with an appeal from an interlocutory decision (as distinct from a final decision).

444

Criminal Appeals and Reviews in Victoria

[9.50]

Appeal against sentence [9.50] Up until the last 15 years, the High Court has historically been very reluctant to grant special leave in sentencing matters.8 In the past, the High Court has taken the view that the development of sentencing principles is, in general, a matter for the courts of appeal in the States and Territories, and that leave to appeal will not be granted in a sentencing matter unless special circumstances exist.9 Such special circumstances include where the appeal involves a question of law (not a question of fact), a principle of general importance, or where there has been a gross violation of the principles governing the exercise of the judicial discretion in imposing sentence.10 As discussed above, the High Court is not an ordinary court of appeal11 and will not grant leave simply because the High Court thinks the sentence is excessive.12 Over the last ten years, the High Court has played a very significant role in the development of sentencing principles and has certainly become far more prepared to grant leave to appeal in sentencing matters than in the past.13 Having said this, it will only be in exceptional circumstances that the High Court will grant special leave to appeal a sentence. Further sources A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Lawbook Co., Sydney, 2014) at [17.160]. Crown appeals against sentence [9.60] Not only is the High Court reluctant to determine appeals concerning sentence, it has been particularly reluctant to hear and determine Crown appeals against sentence. The basis of this reluctance is that a Crown appeal against sentence is regarded as infringing double jeopardy principles and is thus essentially unfair to the offender.14 The right of the Crown to appeal sentence has been described as “a marked departure from the principles theretobefore governing the exercise of 8 The High Court Rules do not differentiate between an appeal against conviction and an appeal against sentence; accordingly, the procedure outlined below (in Part 2) for appeals against conviction will also apply to an appeal against sentence. 9 Lowe v The Queen (1984) 154 CLR 605; [1984] HCA 46 at [2] per Gibbs J; Radenkovic v The Queen (1990) 170 CLR 623; Bini v The Queen (1994) 68 ALJR 859. 10 Lowe v The Queen (1984) 154 CLR 606; Bugmy v The Queen (1990) 169 CLR 525; Neal v The Queen (1982) 149 CLR 305; York v The Queen (2005) 225 CLR 466; [2005] HCA 50 at [40]. 11 Liberato v The Queen (1985) 159 CLR 507 at 509; Mickelberg v The Queen (1989) 167 CLR 259; Griffiths v The Queen (1989) 167 CLR 372. 12 Postiglione v The Queen (1997) 189 CLR 295; Lowe v The Queen (1984) 154 CLR 606 at 607. 13 See R Edney and M Bagaric, Australian Sentencing: Principles and Practices (Cambridge University Press, Melbourne, 2007) Ch 4. 14 For a history of Crown appeals against sentence, see Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [8]–[12].

[9.70]

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penal jurisdiction”.15 The High Court will not grant special leave to appeal just because the court thinks the sentence below is inadequate. The Crown must establish some error of law was made in the court below.16 In addition, the applicant Crown must also surmount the strict criteria in s 35A of the Judiciary Act 1903 (Cth). The High Court (and the courts of appeal in the States and Territories) has determined an increasing number of Crown appeals against sentence over the last few decades.17 Crown appeal against acquittal [9.70] The High Court will not entertain a prosecution appeal against an acquittal where the acquittal was the verdict of a jury.18 To allow such an appeal would be in breach of the common law principle of double jeopardy. However, the High Court can entertain a Crown appeal against the decision of a court of appeal below to direct the entry of a verdict of acquittal.19 But it will only be in very exceptional circumstances that the High Court would grant leave to appeal an acquittal.20 The appellant must demonstrate not simply an error of law in the reasoning process leading to the judgment of acquittal, but that the appeal is necessary to resolve an important issue of fundamental legal principle.21 An example of a successful Crown appeal against a judgment of acquittal by a court of appeal is R v Glennon where a majority of the High Court held that the Victorian Court of Appeal had erred in upholding an appeal by the offender and directing a verdict of acquittal.22 The High Court held 15 Williams v The Queen [No 2] (1934) 50 CLR 551 at 561, referred to by Deane J in Rhode v DPP (1986) 161 CLR 119; [1986] HCA 50 at [1]; see also Griffiths v The Queen (1989) 167 CLR 372. 16 See, eg, R v Osenkowski (1982) 30 SASR 212; Dinsdale v The Queen (2000) 202 CLR 321; Peel v The Queen (1971) 125 CLR 447; [1971] HCA 510; Lowe v The Queen (1984) 154 CLR 606; Everett v The Queen (1994) 124 ALR 529; R v Many (1991) 65 ALJR 259. 17 See, eg, the comments of Spiegelman J in R v JW (2010) 77 NSWLR 7 at 117 and Sentencing Advisory Council of Victoria, Sentence Appeals in Victoria: Statistical Research Report (March 2012) p 7. 18 Snow v The Queen (1915) 20 CLR 315; Davern v Messell (1984) 155 CLR 21; [1984] HCA 34; R v Glennon (1992) 173 CLR 592. If the jury verdict of acquittal has been “perfected” in the judgment of the court, then the Crown is not permitted to seek an order from the court of appeal quashing the verdict of acquittal on the basis of a procedural error by the foreperson when delivering the verdicts: NH v Director of Public Prosecutions [2016] HCA 33 [74]. Some jurisdictions do permit prosecution appeals against acquittal by a jury in limited circumstances: see Criminal Code Act 1924 (Tas) s 401(2); Criminal Appeals Act 2004 (WA) s 24(2)(da). 19 R v Benz (1989) 168 CLR 110; [1989] HCA 64 at 111–113 (CLR); R v Glennon (1992) 173 CLR 592; [1992] HCA 16 at [3]. 20 R v Lee (1950) 82 CLR 133 at 138; R v Benz (1989) 168 CLR 110; R v Glennon (1992) 173 CLR 592; [1992] HCA 16 at [3]; R v Rogerson (1992) 174 CLR 268; [1992] HCA 25 at [3] per Dean J. 21 Examples include R v Benz (1989) 168 CLR 110; [1989] HCA 64. 22 R v Glennon (1992) 173 CLR 592; [1992] HCA 16.

446

Criminal Appeals and Reviews in Victoria

[9.80]

that the Victorian Court of Appeal (Southwell J dissenting) had erred in concluding that the verdict of the jury was unsafe and unsatisfactory because of adverse pre-trial publicity. In R v Rogerson, the High Court held that the New South Wales Court of Criminal Appeal had misstated the elements of the key criminal law principle (attempting to pervert the course of justice), and overturned the decision of the New South Wales Court of Criminal Appeal to enter a verdict of acquittal.23 Further sources P Priest, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016 at [3.3.2440]. A Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, Lawbook Co., Sydney, 2014) at [17.160].

The original jurisdiction of the High Court [9.80] In addition to its appellate jurisdiction, the High Court can also deal with a criminal matter in the exercise of its original jurisdiction.24 The original jurisdiction of the High Court is essentially supervisory in nature. A common example is where a party (most notably the accused) seeks some form of declaratory relief where it is alleged a statute is invalid or that a body (such as a Crime Commission) has no jurisdiction to exercise a particular power. In these types of appeals, the High Court itself, or the parties, may “state a case” for the opinion of the Full Court of the High Court. An application to the High Court for one of the traditional prerogative (or constitutional) writs, such as certiorari, mandamus, prohibition or habeas corpus, also relies on the original jurisdiction of the High Court.

Requirement to obtain special leave to appeal: Judiciary Act 1903 [9.90] A party does not have an unconditional legal right to appeal to the High Court in a criminal matter. If the party is engaging the appellate jurisdiction of the High Court, the party must first obtain “special leave” to appeal, and until that leave is granted, the party is an “applicant” (for special leave), not an “appellant”. The operation of the special leave 23 R v Rogerson (1992) 174 CLR 268; [1992] HCA 25. 24 The original jurisdiction is set out in ss 75 and 76 of the Constitution. The original jurisdiction extends to all matters: (a) arising under a Treaty; (b) affecting consuls; (c) in which the Commonwealth is a party; (d) between States; and (e) a matter in which a writ of mandamus or prohibition or an injunction is sought against a judicial officer of the Commonwealth: Constitution s 75. Section 76 of the Constitution also provides that the Parliament can pass laws giving the High Court additional original jurisdiction in any matter: (a) arising under the Constitution; (b) arising under any laws made by the Parliament; (c) of admiralty and maritime jurisdiction; and (d) a matter relating to the same subject-matter claimed under the laws of different States.

[9.100]

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provisions is central to the special role of the High Court in the overall administration of criminal justice, and is discussed below. The Judiciary Act 1903 (Cth) s 35(1) states: (1) The jurisdiction of the High Court to hear and determine appeals from: (a) judgments of the Supreme Court of a State, whether given or pronounced in the exercise of federal jurisdiction or otherwise; or (b) judgments of any other court of a State given or pronounced in the exercise of federal jurisdiction; whether in civil or criminal matters, is subject to the exceptions and regulations prescribed by this section. (2) An appeal shall not be brought from a judgment, whether final or interlocutory, referred to in subsection (1) unless the High Court gives special leave to appeal.

(Section 35AA then sets out the same general provision in respect to appeals from the Supreme Court of a Territory.) As a result of the Judiciary Act 1903 (Cth) s 35, appeals to the High Court in criminal matters consist of two distinct stages. First, the applicant must obtain special leave to appeal, and if special leave is granted, the appellant must then persuade the High Court of the merits of the substantive appeal. An application for special leave is not an “appeal” and, for the purposes of the Judiciary Act 1903 (Cth) s 78, the applicant is not a party to any proceedings in a court “exercising federal jurisdiction”.25

Test to determine special leave to appeal [9.100] To obtain special leave to appeal, the applicant needs to establish that the decision being appealed is clearly wrong in law, or is attended with sufficient doubt as to the correctness of the decision.26 This general requirement is, however, a necessary, but not a sufficient, condition for a grant of leave. The key section to the operation of criminal appeals to the High Court (brought under the Judiciary Act 1903 (Cth) s 35) is s 35A of the Judiciary Act 1903 (Cth). Section 35A states that in considering whether to grant an application for special leave to appeal, the High Court “may have regard to any matters it considers relevant” but shall have regard to the following two considerations: (a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) that is of public importance, whether because of its general application or otherwise; or 25 United States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [30]. 26 D Mildren, The Appellate Jurisdiction of the Courts in Australia (Federation Press, Sydney, 2015) p 173.

448

Criminal Appeals and Reviews in Victoria

[9.100]

(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.27

A number of points can be noted about s 35A of the Judiciary Act 1903 (Cth). First, the High Court is given very broad latitude in deciding whether to grant special leave. It may (but does not have to) consider anything that the court considers relevant. This could include, for example, the seriousness of the offences involved or the severity of a sentence imposed, or the consequences of the judgment being appealed. Second, it is mandatory for the court to take into account the two factors set out in s 35A. The first factor is whether the appeal involves a question of law. The High Court will not in general hear an appeal based simply on the facts of a case. There must be an issue concerning the correct legal principle or interpretation involved. However, it is not enough that the appeal does involve a question of law; the question of law must be of “public importance” or involve differences of opinion between courts of appeal. The notion of public importance in s 35A(a) is very broad and a matter for the discretion of the High Court. The public importance could arise because of the general application of the question of law involved or because of the specific circumstances of the case being appealed (“visitation” cases). Questions of law that could be of general public importance include questions that affect the conduct of all or most criminal trials in Australia.28 Opinions can differ as to whether a particular question of law is of public importance. Under s 35A(a) special leave may also be granted where there is a conflict of opinion between appellate courts regarding the specific question of law. This conflict could arise between Courts of Appeal in different jurisdictions in Australia, or between judgments of the Court of Appeal in one jurisdiction. The second, separate factor the High Court must take into account is whether the “interests of the administration of justice” (either generally or in the specific case) require the High Court to consider the judgment being appealed. In the context of criminal appeals, the focus here is on miscarriages of justice. If the question of law involves a possible miscarriage of justice, the High Court may be more likely to grant special leave. However, by definition, the miscarriage of justice must be serious 27 In Smith Kline and French Laboratories (Aust) v Commonwealth (1991) 173 CLR 194; [1991] HCA 43 the High Court confirmed the constitutional validity of s 35A of the Judiciary Act 1903 (Cth). 28 Examples could include the interpretation and application of provisions of the Criminal Code (see Criminal Code Act 1995 (Cth) Sch) or the Uniform Evidence Act (see Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW)), or a common law principle.

[9.120]

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or substantial to justify leave being granted. An example would be the conviction and incarceration of an arguably innocent person, or a case where there was insufficient evidence to justify conviction. Note the analogous provision in the Victorian Criminal Procedure Act 2009 s 297 requiring that there be a “substantial” miscarriage of justice before the Court of Appeal could uphold an appeal. In short, an appeal to the High Court is, in general, a two-step process consisting of first obtaining special leave to appeal, and then the court subsequently hearing the appeal itself. Through the operation of the special leave provisions, the High Court is able to not only control the number of cases it will hear on appeal, but also the qualitative nature of those cases.29 This, in turn, affects the overall role of the High Court within the national system of criminal law and the development of criminal law jurisprudence.30 If special leave to appeal is refused, the High Court does not normally provide detailed reasons. The court may, for example, state that the decision being appealed was “clearly correct” or not attended with doubt.31

Test for determining appeal [9.110] Another difference between the High Court and other appeal courts is that the High Court is not constrained by specific criteria that must be met in deciding whether or not to uphold an appeal in a criminal matter. On hearing and determining an appeal, the High Court has very broad discretions in order to accommodate the range of cases that come before it. The absence of specific legislative tests for upholding an appeal is not surprising given that in most criminal appeals to the High Court, the court is required to determine if the State or Territory court of appeal (the subject of the appeal) made a legal error. The focus is on the words of the judgment of the relevant court of appeal. This is quite a different exercise from determining, for example, if the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. The High Court could, however, determine if the appeal court below erred in concluding that the verdict of the jury was or was not unreasonable.

Orders available on successful appeal [9.120] The High Court has very extensive powers of disposition on determining the appeal. Under the Judiciary Act 1903 (Cth) s 36: “The 29 Wickham notes that the High Court has one of the highest workloads of all national superior courts, second only to the United States Supreme Court: B Wickham, “The Procedural and Substantive Aspects of Applications for Special Leave to Appeal in the High Court of Australia” (2007) 28 Adel L Rev 153. 30 M Kirby, “Maximising Special Leave Performance in the High Court” (2007) 30 UNSWLJ 731. 31 D Mildren, The Appellate Jurisdiction of the Courts in Australia (Federation Press, Sydney, 2015) pp 174–175.

450

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[9.130]

High Court in the exercise of its appellate jurisdiction shall have power to grant a new trial in any cause in which there has been a trial whether with or without a jury.” Under the Judiciary Act 1903 (Cth) s 37: The High Court in the exercise of its appellate jurisdiction may affirm reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance, and if the cause is not pending in the High Court may in its discretion award execution from the High Court or remit the cause to the Court from which the appeal was brought for the execution of the judgment of the High Court; and in the latter case it shall be the duty of that Court to execute the judgment of the High Court in the same manner as if it were its own judgment.

Thus, on an appeal against conviction or sentence, the High Court can affirm the judgment being appealed, reverse the judgment, modify the judgment or order a new trial. In exercising these powers the High Court has all of the powers of the Court of Appeal whose orders have been appealed. The High Court can also remit the case back to the court appealed from. Remittal may be appropriate where, for example, the court below failed to deal with all grounds of appeal or failed to independently assess the evidence in order to determine if the verdict of the jury was unsafe or unsatisfactory.32 Acquittal or new trial [9.130] The usual disposition following an appeal against conviction being upheld is that the court of appeal will order a new trial rather than an acquittal. An acquittal will only be entered in exceptional circumstances. However, in four cases in the “snapshot” cases (2012–2016) discussed in Appendix 1 to this chapter, the High Court entered a verdict of acquittal. In Milne v The Queen,33 for example, the accused had been charged with “money laundering” under the Criminal Code (Cth) s 400(1). On appeal against conviction, the High Court held that the relevant conduct of the accused (selling shares) did not amount to “use” in the sense required by the legislation. This is an example where the acquittal is justified because as a matter of law the accused could not be guilty of the offence charged, and hence there is no point in a second trial. In Fitzgerald v The Queen,34 the accused had been convicted of murder. The Crown relied on DNA evidence to establish that he was part of the group that attacked the victim. The High Court held that, based on the evidence of the forensic scientist regarding the DNA evidence, the jury could not have been satisfied beyond reasonable doubt of the guilt of the accused. This is an example where the acquittal is justified on the basis that the prosecution evidence, at its highest, was insufficient to prove guilt beyond reasonable doubt. 32 Jones v The Queen (1989) 166 CLR 409. 33 Milne v The Queen (2014) 242 CLR 149; [2014] HCA 4. 34 Fitzgerald v The Queen (2014) 311 ALR 158; [2014] HCA 28.

[9.140]

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In Douglass v The Queen,35 the accused was convicted of sexual offences against his granddaughter. The trial was by judge alone (in South Australia). On appeal to the High court against conviction, the High Court held that not only had the trial judge failed to provide adequate reasons for his finding of guilt, but the prosecution evidence (essentially that of the three-year-old complainant) was insufficient for the judge to have been satisfied beyond reasonable doubt of the guilt of the appellant: at [48]. In Burns v The Queen,36 the appellant had been convicted of manslaughter by unlawful and dangerous act. The basis of the charge was that she had provided methadone to the deceased, who had ingested it. The High Court held that on the evidence presented, the offence of manslaughter could not be made out and thus a new trial was not warranted. The court entered an acquittal.

Procedure on application for special leave to appeal Introduction [9.140] In January 2005 new rules for the High Court came into effect.37 These are the High Court Rules 2004 (Cth) (HCR). Part 41 of the HCR governs the procedure for applications for special leave to appeal. On 7 June 2016 the Justices of the High Court introduced the High Court Amendment (2016 Measures No 1) Rules 2016 (Cth). These amending rules make significant changes to the procedure for applications for special leave to appeal.38 The 2016 rules repeal the former Pt 41 of the HCR and substitute a new Pt 41 headed “Applications for leave or special leave to appeal”. The new 2016 rules are effective as at 1 July 2016. The rules give primacy to written submissions rather than oral argument, and it is expected that the bulk of special leave applications will be made on the papers. An applicant now only has a maximum of 12 pages to convince the Court that there is merit in the application. The applicant’s Summary of Argument now has to be filed at the same time as the application for special leave and both need to be filed within 28 days from the date of the impugned judgment. This means the written summary of argument is now of critical importance and readers are referred to Chapter 10 of this book, which discusses appellate advocacy. The rules do not distinguish between an application for leave to appeal a conviction and an application to appeal a sentence. 35 Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34. 36 Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35. 37 See B Wickham, “The Procedural and Substantive Aspects of Applications for Special Leave to Appeal in the High Court of Australia” (2007) 28 Adel L Rev 153. 38 See High Court of Australia, High Court Amendment (2016 Measures No 1) Rules 2016 (Cth) (7 June 2016), Explanatory Statement. The new rules amend Pts 26, 41, 44 and Sch 1 (Forms) of the HCR.

452

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[9.150]

Flowchart 9.1: Commencing application for special leave to appeal [9.150] The following flow chart sets out the basic steps involved in an application for special leave to appeal. Each of these steps is then discussed.

[9.160]

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Notice of application [9.160] An application for special leave to appeal is commenced by filing a notice of application for special leave to appeal: Form 23.39 The application is filed in the registry of the High Court in the State or Territory in which the proceedings were commenced.40 The application must name as parties all those who were parties to the proceeding in the court below. The new Form 23 incorporates the previous notice of application (Form 23), draft notice of appeal (Form 24) and Summary of Arguments/ Written Case (Form 18) into the one single form (Form 23). The notice must be signed by a legal practitioner on behalf of the applicant, or signed by the applicant if unrepresented.41 The notice must not exceed 12 pages and be typed in at least 12 point font.42 The application should identify the judgment sought to be appealed, the proposed grounds of appeal and the orders sought if special leave is granted, the special leave question said to arise, and the arguments in support of the grant of special leave.43 The application must be accompanied by the following:44 (a) copy of the sealed order or judgment of the court below; (b) copy of the reasons for judgment of the court below; (c) if the judgment of the court below determines an appeal or reviews a decision: • copy of the signed, sealed order judgment or decision; and • the reasons, if any, of the primary court or decision-maker; (d) in a criminal case: (i) the indictment; (ii) the transcript of entry of a plea of guilty, or the summing up or charge; (iii) the transcript of entry of verdict; (iv) the judge’s remarks on sentencing; and (e) notice of appeal or application for leave to appeal in the court below. 39 HCR r 41.01.1. 40 HCR r 41.02.3. 41 HCR r 41.01.2. 42 HCR r 41.01.3. 43 See High Court of Australia, High Court Amendment (2016 Measures No 1) Rules 2016 (Cth) (7 June 2016) Explanatory Statement, Pt 41 cl 2. 44 HCR r 41.01.4.

454

Criminal Appeals and Reviews in Victoria

[9.170]

Time limits for filing [9.170] The application must be filed within 28 days of the judgment below.45 If the application is filed outside the 28-day period, the applicant shall: (a) in the application book seek an order that compliance with the time limit be dispensed with; and (b) file and serve an affidavit explaining why the time limit was not complied with.46 Service [9.180] A copy of the application and the documents referred to in r 41.01.4HCR must be served on each respondent within seven days after filing the application.47 A copy of the application is also lodged with the proper officer of the court below within seven days after filing the application.48 Within seven days after serving or lodging the documents, the applicant must complete and file an affidavit of service.49 Appearance [9.190] Within 14 days of service of the application, a respondent opposing or appearing on the application must file and serve on the applicant a notice of appearance: Form 7.50 A respondent willing to submit to any orders made by the High Court can file a submitting appearance form: Form 8.51 Response [9.200] If the applicant is represented, the respondent must file and serve a response within 21 days after service of the application.52 If the applicant is unrepresented, any two justices may direct that a respondent file and serve a response within 21 days after the direction is given: Form 23A.53 The response must not exceed five pages in length.54

45 HCR r 41.02.1. 46 HCR r 41.02.2. 47 HCR r 41.03.1. 48 HCR r 41.03.2. 49 HCR r 41.03.3. 50 HCR r 41.04(a). 51 HCR r 41.04.(b). 52 HCR r 41.05.1. 53 HCR rr 41.05.2 and 41.05.3. 54 HCR r 41.05.5.

[9.220]

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Applicant’s reply [9.210] An applicant may, within seven days of service of the response, file and serve a reply.55 The reply must not exceed five pages and be signed by the applicant’s legal representative (or the applicant, if unrepresented).56 Application book [9.220] If there is a response to an application, an “application book” must be prepared for an application for special leave to appeal.57 The contents of the book are all the documents referred to in HCRr 41.01.4, together with: • • • •

the application for special leave; the response; any reply; any affidavit filed under HCRr 41.02.2 explaining a failure to comply with r 41.02.1;

• any submitting appearance by a respondent; and • any other document directed by the registrar to be included.58 The documents in the application book must be arranged in the following order:59 (i) the indictment; (ii) transcript of entry of plea of guilty or summing up, or charge; (iii) transcript of entry of verdict; and (iv) judge’s remarks on sentencing. The documents in the court below should be arranged in the following order: (i) notice of appeal or application for leave to appeal; (ii) reasons; and (iii) sealed order or judgment. The documents in the High Court should be arranged in the following order: (i) application for special leave; (ii) any affidavit filed pursuant to HCRr 41.02.2; (iii) response; (iv) any reply; and 55 HCR r 41.06.1. 56 HCR rr 41.06.2 and 41.06.3. 57 HCR r 41.07.1. For detailed guidance, see High Court of Australia, Notes on How to Compile Application Books. 58 HCR r 41.07.2. 59 HCR r 41.07.3(b).

456

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[9.230]

(v) any submitting appearance by a respondent.60 The pages are to be numbered consecutively and the original pagination of any document (including transcripts and reasons for judgment) reproduced in the application book shall be retained.61 Within 21 days after filing and serving the reply, the applicant must prepare and file nine copies of the application book, and an electronic copy of the application, and serve three copies on each respondent.62 The applicant must prepare the application book in the same manner required of an appeal book under rr 42.13.1–42.13.8HCR.63 Only once the application book has been filed, the applicant must email a copy of the e-book to the registry. The book is to be sent as a PDF attachment to [email protected]. Directions by Registrar [9.230] At any time after filing the application, the Registrar may give directions as to any matter which appears to the Registrar to be a convenient matter upon which to give directions.64 Discontinuation of application [9.240] A notice of discontinuation must be served on the respondent: Form 25.65 Unless the court otherwise directs, an applicant who discontinues an application must pay the costs of the respondent.66 If the applicant fails to comply with rr 41.03.1 and 41.03.2 within three months after filing an application, the application shall be deemed to be abandoned unless the court has otherwise ordered.67 Determination of application for leave without oral argument [9.250] A party can no longer request an oral hearing (in the application for special leave to appeal). Any two Justices may determine an application for special leave to appeal without listing it for oral argument and direct the Registrar to draw up, sign and seal an order determining the application.68 60 HCR r 41.07.3. 61 HCR r 41.07.5. 62 HCR r 41.07.6. 63 HCR r 41.07.7. For contents of the appeal book, see the next section in this chapter at [9.430]. 64 HCR r 41.11. 65 HCR r 41.09.1. 66 HCR r 41.09.2. 67 HCR r 41.13.2. 68 HCR r 41.08.1. The determination of the application without an oral hearing is not a denial of natural justice: Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3 at [4].

[9.280]

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It is a matter for the High Court whether an oral hearing is to be held or not. In determining whether to list a matter for oral argument, the court will consider on merit whether it will be assisted by oral argument.69 Determination of application for leave with hearing [9.260] If an application is listed for hearing, a party who is present at the hearing may appear and present oral argument.70 The time allocated to the parties for oral argument is as the court orders but, in the absence of a court order, the time is 20 minutes for the applicant, 20 minutes for the respondent and five minutes for the applicant in reply.71 In some cases the Justices hearing the application for special leave will refer the application to an enlarged court. This could arise where, for example, the matter is particularly complex or raises particularly important questions of law. Part 44 of the HCR cover referral of a matter to an enlarged court. If the matter is referred to an enlarged court, the applicant must file written submissions within 35 days of the referral: Form 27A.72 Unrepresented applicant [9.270] Unrepresented (or self-represented) litigants in the High Court constitute a significant percentage of all applicants for special leave. According to Wickham, for the year ending June 2005, the High Court received 720 special leave applications and, of those, 57% were unrepresented.73 This represents a potential enormous drain on the resources of the High Court, and for this reason the HCR have some specific procedures for an unrepresented applicant for special leave. These rules create what could be called a presumption against oral argument. Flowchart 9.2: Unrepresented applicant [9.280] The following flow chart shows the basic steps in an application for special leave by an unrepresented applicant.

69 High Court of Australia, High Court Amendment (2016 Measures No 1) Rules 2016 (Cth) (7 June 2016) Explanatory Statement, Pt 41 cl 5. 70 HCR r 41.08.2. 71 HCR r 41.11.3. 72 If the matter is referred to an enlarged court, the applicant must file written submissions within 35 days of the referral: HCR r 44.02 (Form 27A). 73 B Wickham, “The Procedural and Substantive Aspects of Applications for Special Leave to Appeal in the High Court of Australia” (2007) 28 Adel L Rev 153. Mildren J states that for 2012–2013 44% of applicants for leave or special leave to appeal were unrepresented litigants: D Mildren, The Appellate Jurisdiction of the Courts in Australia (Federation Press, Sydney, 2015) p 174.

458

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[9.290]

Basic steps for unrepresented applicant [9.290] The unrepresented applicant must prepare an application for special leave to appeal using Form 23.74 The application must name as parties all those who were parties to the proceedings in the court below. The application must be accompanied by all the documents set out in rule 41.01.4 of the HCR.75 The unrepresented applicant must also file two additional copies of the notice of application and two additional copies of the documents required by HCRr 41.01.4.76 The application for special leave must be filed within 28 days after judgment of the court below77 in the State or Territory in which the proceedings in the court below were commenced.78 A copy of the application and a copy of the documents filed under HCRr 41.02.2 must 74 HCR r 41.01.1. 75 These include the indictment, transcript of entry of plea of guilty or summing up, transcript of entry of verdict, the judge’s remarks on sentencing and the notice of appeal or application for leave to appeal to the court below. 76 HCR r 41.01.5. 77 HCR r 41.02.1. 78 HCR r 41.02.3.

[9.320]

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be served on each respondent (in the manner provided by the HCR) within seven days after filing the notice of application for special leave.79 A copy of the notice of application for special leave to appeal must also be filed with the proper officer of the court below within seven days of filing the notice of application for special leave with the High Court.80 Within seven days of serving the notice of application for leave to appeal together with the accompanying documents, the applicant must file an affidavit of service.81 If the unrepresented applicant does not comply with HCRr 41.10.3, the application is taken to be abandoned. If the application is taken to be abandoned, the Registrar must provide a certificate to that effect to the respondent if requested.82 Dismissal of unrepresented application [9.300] Where an unrepresented applicant has filed an application, any two Justices may, without requiring any party to the proceedings to respond to the applicant’s written case, determine that the application shall be dismissed and direct the Registrar to draw up, sign and seal an order dismissing the application.83 Stay of proceedings below [9.310] The filing of an application for special leave to appeal or the filing of a notice of appeal does not operate to stay the orders being appealed.84 The judgment or orders of the court below are “final” and not in any way considered to be provisional or conditional on the outcome of an appeal. The High Court (or a justice of the High Court) is, however, empowered to grant a stay of orders “that are or may become the subject of its appellate jurisdiction. If the Court did not have a power to stay an order the subject of an appeal it might fail to do full justice to the appellant or potential appellant.”85 Nevertheless, where the order being appealed is an order of imprisonment, it would only be in very exceptional circumstances that the High Court would stay such an order and grant bail to the applicant or the appellant.86 Interveners [9.320] Under the Judiciary Act 1903 (Cth) s 78A the Attorney-General of the Commonwealth or of a State or Territory may intervene in a matter 79 HCR r 41.03.1. 80 HCR r 41.03.2. 81 HCR r 41.03.3. 82 HCR r 41.10.2. 83 HCR r 41.08.1. 84 HCR r 42.09. 85 United States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [37]–[38]. 86 See the cases referred to in G Hampel, D Gurvich and S Braun, Bail Law in Victoria (2nd ed, Federation Press, 2015) at [95-101].

460

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[9.330]

before the High Court which involves the Constitution or its interpretation.87 In such cases the interpretation of the High Court may have consequences for the administration of justice in all or most jurisdictions in Australia, and it is only reasonable that those other jurisdictions be able to participate in the appeal. It is therefore common for all, or some, jurisdictions in Australia to be an intervener (in a criminal matter concerning constitutional interpretation) on an appeal to the High Court, and to make submissions to the court. An intervener will normally support the submissions of one of the parties to the appeal. Bail before and after grant of special leave [9.330] The High Court has a general power to grant bail to persons who are applying for special leave to appeal, and to an appellant after special leave to appeal has been granted. 88 The source of the power to grant bail is not the inherent jurisdiction of the High Court, but rather “an incident of the power conferred by s 73 of the Constitution to hear appeals from orders of certain courts. It is not a question of inherent jurisdiction.”89 One of the powers conferred by s 73 of the Constitution is the power to stay an order the subject of the appeal so that: When the Court grants bail in a criminal case, it does so as an incident in the course of staying the order that is the authority for detaining the prisoner and to make the stay order effective.90

Although the High Court has power to grant bail, it will only grant bail in exceptional circumstances. In United Mexican States v Cabal91 the High Court stated: “Consequently the doctrine of this Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances.”92 The court explained: The history of decisions of this Court shows that ordinarily it will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed. The grant of special leave will often – perhaps usually – indicate that there are strong grounds for so concluding. Second, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined. Thus, in Marotta v 87 The intervener must file a notice in the High Court (HCR r 5.01) and serve copies on all parties and all Attorneys-General in Australia: HCR r 5.02. 88 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [38]. 89 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [37] per the court. However, bail cannot be granted prior to special leave to appeal being granted: at [31]. 90 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [38]. 91 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60. 92 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [40]. The applicant would need to establish that there are very strong grounds for concluding that leave will be granted, and that the custodial sentence will have expired before the hearing of the application for special leave: at [43]. If the applicant will have served the term of imprisonment before the application for special leave to appeal is heard, then that is a significant factor in determining whether or not to grant bail: Peters v The Queen (1996) 71 ALJR 309.

[9.350]

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The Queen, Callinan J granted bail after special leave had been granted. His Honour thought that substantial parts of the custodial sentences were likely to have been served and possibly completed in one case by the time the Court gave its decision on the appeal.93

In Cabal the High Court also stated that, in very rare cases, the court could grant bail before the application for special leave to appeal was granted.94 However, there must be: very strong grounds for concluding that leave will be granted. The applicant will also need to show that it is likely that the custodial sentence or the greater part of it will have expired before the application for leave is heard.95

Commencement of appeal [9.340] Assuming special leave to appeal has been granted, the appeal itself is now commenced. Flowchart 9.3: Commencement of appeal [9.350] The following flow chart sets out the basic steps involved in the appeal itself.

93 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [41]. 94 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [42]–[43]. 95 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [43].

462

Criminal Appeals and Reviews in Victoria

[9.350]

[9.390]

9 Appeals to the High Court

463

Notice of appeal [9.360] The appeal is commenced by filing a notice of appeal: Form 24.96 The notice must state: (a) the name of the court below, or the judge pronouncing the judgment below, and the date when judgment was given; (b) the date when special leave was given; (c) the particulars of any terms of special leave, if any; (d) whether the whole or part only of the judgment, and what part of the judgment below is appealed; (e) briefly, but specifically, the grounds of the appeal, which shall not depart from those set out in the draft notice of appeal on the hearing of the application for special leave, unless the court otherwise orders; and (f) the precise form of order the appellant contends the court should make, including any special order as to costs.97 At the same time as filing the notice of appeal, the appellant must also file under r 42.10: (a) a copy of the appeal book or documents before the judge or court below; and (b) a list of all exhibits before the primary judge or court below together with those exhibits.98 When an exhibit cannot be filed in accordance with r 42.10.1, the appellant must state the circumstances in writing and give such information as to enable the registrar to cause the exhibits to be available to the court.99 Time limits [9.370] The notice of appeal must be filed within 14 days after the date special leave to appeal was granted.100 Place for filing [9.380] The notice is filed in the office of the High Court registry in the State or Territory in which the proceedings below were commenced.101 Service and lodgement [9.390] The notice of appeal must be served on each of the respondents within the time set out in r 42.03 (that is, 14 days from the date special 96 HCR r 42.01. The critical component of the notice is the statement of the grounds of appeal. For Form 24, see r 42.02.1. 97 HCR r 42.02.2. 98 HCR r 42.10.1. 99 HCR r 42.10.2. 100 HCR r 42.03. 101 HCR r 42.04.

464

Criminal Appeals and Reviews in Victoria

[9.400]

leave was granted).102 The court can order that the notice be served on any other person, who thereupon is added as a party to the appeal.103 Service may be affected in any manner provided by the HCR.104 Within seven days after service of the notice the appellant must file an affidavit of service.105 A copy of the appeal must be lodged with the Prothonotary or other proper officer of the court below.106 Appearance [9.400] A respondent opposing, or intending to appear on, the appeal must file and serve on the appellant a notice of appearance within seven days of service of the notice of appeal: Form 7.107 A respondent willing to submit to any orders made by the court can file a submitting appearance: Form 8. Preparation of index [9.410] When the documents mentioned in HCRr 42.10 above have been filed, the registrar fixes a date and place for the settling of the index of the appeal book and notifies the parties.108 Within 14 days after filing the notice of appeal, the appellant must file a draft index of the proposed contents of the appeal book and serve it on each respondent.109 The appellant then serves the draft index on each respondent a reasonable time before the appointment to settle the index.110 Settling the index [9.420] In settling the index the registrar and the parties shall have regard to the issues of fact and law that appear from the grounds of appeal as set out in the notice of appeal.111 The registrar and the parties shall endeavour, in settling the index to: (a) exclude from the appeal book documents that are irrelevant or unnecessary; and (b) reduce, as far as possible, the number and the length of documents to be included in the appeal book, taking care to avoid the repetition of merely formal parts of documents and unnecessary duplication.112 102 HCR r 42.05.1. 103 HCR r 42.05.2. 104 HCR r 42.05.4. 105 HCR r 42.05.5. 106 HCR r 42.05.3. 107 HCR r 42.06.1. 108 HCR r 42.11.1. 109 HCR r 42.11.2. 110 HCR r 42.11.3. 111 HCR r 42.12.1. 112 HCR r 42.12.2.

[9.430]

9 Appeals to the High Court

465

Within three days after the index has been settled, the appellant shall file a clean copy of the index as settled.113 Where the appeal is pending in an office of the registrar other than Canberra, Melbourne or Sydney, the registrar may settle the index in the absence of the parties,114 in which case the registrar shall serve a copy of the index on each of the parties. If any party is dissatisfied with the index as settled, the registrar may, if he or she thinks it necessary, obtain the direction of a judge.115 Preparation and filing of appeal book [9.430] Unless otherwise ordered, the appeal book shall be prepared by the appellant.116 The appeal book must be printed in uniform copies of each page in a clear and legible type. The pages should be numbered consecutively and on both sides of the sheet. There should be a 2.5 cm margin each side and every tenth line should be numbered in the left margin. Either flexi binding or spiral binding can be used.117 The pages must be of A4 size and bound in volumes of 500 pages. Where the appeal book consists of two or more volumes, the title page shall bear the appropriate volume number, and the index shall contain a subheading giving the appropriate volume number before the entry for the first document in each volume. The title page of each volume should also set out the full and correct title of the proceedings, including the title of the court below, the names of the solicitors for each party, the address for service of each party and the telephone and reference number for each party. After the title page the index should consist of a complete list of documents contained in the record before the High Court, as settled under HCRr 42.12, indicating in the case of each document whether its text is reproduced and included in the appeal book or not and, if it is reproduced, indicating the page on which it appears.118 The index to the appeal book must comply with r 42.12.119 It must provide the date of each document and give, in the case of exhibits, the exhibit mark and, in the case of documents marked only for identification, the exhibit mark, if any, with the letters “MFI” following the exhibit mark.120 In the index, the exhibits must be arranged in the order in which they have been lettered or numbered with a reference to the page of the appeal 113 HCR r 42.12.3. 114 HCR r 42.12.4. 115 HCR r 42.12.7. 116 HCR r 42.13.1. For more detailed guidance, see High Court of Australia, Compilation of Appeal Books. 117 HCR rr 42.13.6 and 42.13.7. 118 HCR r 42.13.8(b). 119 HCR r 42.13.9. 120 HCR r 42.13.10.

466

Criminal Appeals and Reviews in Victoria

[9.440]

book on which the tendering of exhibits is recorded.121 The documents in the appeal book must be arranged in the following order: (a) process and pleadings; (b) evidence, oral and affidavit; (c) testimony taken on commission or before an examiner and put in, or used as, evidence; (d) exhibits: (i) arranged, not in the order in which they have been lettered or numbered as exhibits, but in chronological order according to the dates borne by the documents; (ii) if a document is undated it must be placed in the sequence contended for by the appellant, but the appellant shall inform the respondent of the position, or order, proposed for the document and the respondent may require that a note “date and order disputed” be inserted at the head of the document; (iii) include correspondence; (e) the reasons for judgment of the primary judge or court; (f) a copy of the sealed judgment or order of the primary court; (g) the notice of appeal, if any, from that judgment to a court other than the court; (h) if the judgment below is that of a court exercising appellate jurisdiction: (i) the reasons for the judgment below; and (ii) a copy of the sealed order or judgment of the court below; (i) the order of the court granting special leave to appeal; (j) the notice of appeal to the court; (k) any notice of contention; (l) any application for special leave to cross-appeal; (m) a certificate that the appeal book has been examined and is correct, signed by the solicitors for the parties.122 Each document must be preceded by the date and a short description of the nature of its contents, but formal headings should not be printed or copied.123 The appeal book must be prepared and produced in a manner satisfactory to the registrar. Filing and service of appeal book [9.440] Unless otherwise ordered, the appellant must within 14 days after the day when the index is settled under r 42.12: (a) file 12 copies of the appeal book; and (b) serve three copies of the appeal book on each 121 HCR r 42.13.11. 122 HCR r 42.13.12. 123 HCR r 42.13.13.

[9.490]

9 Appeals to the High Court

467

respondent.124 One of the 12 copies of the appeal book shall be an examined copy containing an original certificate by the parties or their solicitors stating that it has been examined and is correct.125 There is no provision for filing the appeal books by post. Discontinuance of appeal [9.450] An appellant may discontinue an appeal by filing a notice of discontinuance and serving the notice on the respondent: Form 25.126 Directions by registrar [9.460] At any time after filing the notice of appeal, the registrar may give directions as to any matter which appears to the registrar to be a convenient matter upon which to give directions.127 The registrar can give directions without any hearing or, at the registrar’s discretion, may issue a summons requiring the attendance of the parties before the registrar.128 Dismissal for want of prosecution [9.470] If the appellant has not done any act required by the rules or otherwise has not prosecuted the appeal with due diligence, the court may order that the appeal be dismissed for want of prosecution. The court can fix a time for the doing of an act, and at the same time order that, upon non-compliance, the appeal must be dismissed for want of prosecution or it may make any other order that may seem just.129 The court can make an order under HCRr 42.16.1 on application by a respondent or of its own motion after notice has been given by the registrar to the appellant. Written submission of appellant [9.480] Unless otherwise directed, the appellant must within 35 days after the grant of special leave to appeal or the referral of an application to an enlarged court: (a) file the original and nine copies of its written submissions (Form 27A), not exceeding 20 pages, and chronology (Form 27B); and (b) serve a copy of each document on the respondent and any intervener.130 Written submission of respondent [9.490] The respondent must within 21 days after service of the appellant’s written submissions file the original and nine copies of its written submissions, not exceeding 20 pages, and serve a copy on the 124 HCR r 42.13.15. 125 HCR r 42.13.16. 126 HCR r 42.14.1. 127 HCR r 42.15.1. 128 HCR r 42.15.2. 129 HCR r 42.16.1. 130 HCR r 44.02.

468

Criminal Appeals and Reviews in Victoria

[9.500]

applicant and any intervener.131 The respondent’s submissions must address all the submissions made by the appellant and by any interveners supporting the interests of the appellant: Form 27D. Written submission of intervener [9.500] An intervener must file the original and nine copies of its written submissions, not exceeding 20 pages, and serve a copy on each party and any other intervener.132 An intervener must file and serve its written submissions within seven days after written submissions by the party in support of whom the intervention is to be made are filed.133 An intervener who supports more than one party, or who does not support any party, must file and serve its written submissions within seven days after the respondent’s written submissions are filed: Form 27C.134 Written submission in reply [9.510] The appellant may file a single written submission of no more than five pages in reply to all submissions made by: (a) the respondent; and (b) interveners supporting the interests of the respondent.135 The appellant’s written submissions in reply must be filed and served within14 days after the respondent’s written submissions are filed: Form 27E.136 Annotated form of written submission and chronology [9.520] Each party or intervener must file and serve on the other parties and interveners, at least seven days before the hearing of the appeal, the original and nine copies of its written submissions and chronology, annotated to refer to the pages of the appeal book that contain relevant documents, findings of fact and evidence.137 The annotated written submissions must be signed by the senior legal practitioner who is to present the case in court or, if a party is unrepresented, by the party, and must include the name, telephone number, fax and email address of the signatory and the date of filing.138 Publication of written submission [9.530] A written submission including the annotated form of a written submission and a chronology must include a certification that the submission and chronology is in a form suitable for publication on the 131 HCR r 44.03. 132 HCR r 44.04. 133 HCR r 44.04.2. 134 HCR r 44.04.3. 135 HCR r 44.05.1. 136 HCR r 44.05.5. 137 HCR r 44.06.1. 138 HCR r 44.06.2.

[9.570]

9 Appeals to the High Court

469

internet, or be accompanied by a redacted form of the submission and chronology suitable for publication on the internet.139 Outline of oral submissions [9.540] No later than the commencement of oral argument for a party or intervener, the party or intervener must give to the court, and other parties and interveners, an outline of the propositions that the party or intervener intends to advance in oral argument. The outline should not exceed three pages, should be stated sequentially and related to the written submissions filed for the party or intervener: Form 27F.140

Hearing of the appeal [9.550] The hearing of the appeal is by a bench of five or seven judges. Only rarely would the High Court hand down its decision immediately at the conclusion of the hearing. The usual course is for the court to reserve judgment and to deliver its decision some time later. Issues that can arise on appeal Reliance on “new” ground of appeal [9.560] The High Court can hear and determine a ground of appeal which was neither raised at the trial nor in the intermediate court of appeal. The High Court would, however, only permit such a new ground in exceptional circumstances and to prevent a miscarriage of justice.141 The new ground must raise an issue concerning a principle of law or a rule of law. Fresh evidence on appeal [9.570] In the exercise of its appellate jurisdiction (under s 73 of the Constitution), the High Court will not receive fresh or new evidence but will decide the appeal only on the basis of the evidence and the law as at the time of the proceedings below.142 In its appellate jurisdiction the court only considers the correctness of the judgment being appealed. This type of appeal is an appeal stricto senso. There is no legislative provision which gives the High Court a power to receive further evidence. This is in marked contrast to the power of State and Territory courts of appeal which, pursuant to legislative provision, can receive fresh or new evidence,-as discussed in Chapter 6 at [6.210]. 139 HCR r 44.07. 140 HCR rr 44.08.1 and 44.08.2. 141 HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 at [36]; Heron v The Queen (2003) 197 ALR 81; [2003] HCA 17; Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60; Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34. 142 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35; Pantorno v The Queen (1989) 166 CLR 466; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [14].

470

Criminal Appeals and Reviews in Victoria

[9.580]

Costs [9.580] The High Court has a general discretion regarding the making of a costs order on an appeal.143 However, the general approach on an appeal against conviction or sentence is that a costs order will not be made unless there are exceptional circumstances.144 An example of exceptional circumstances is if the appeal to the High Court raises important constitutional questions concerning the interpretation of the Victorian Charter of Human Rights and Responsibilities Act 2006. In Momcilovic v The Queen145 the High Court awarded two-thirds of the costs of the appellant to be paid by the first respondent.146 In other types of appeal, costs can be awarded against a party. For example, in R v Khazaal147 the Commonwealth DPP appealed the decision of the New South Wales Court of Appeal to quash the respondent’s conviction. Although the DPP’s appeal to the High Court was upheld, the appellant agreed to pay the respondent’s costs of the appeal. Where costs are awarded against a party, the High Court can, in some cases, order that a costs indemnity certificate be granted to enable the party to recover the costs he or she has to pay.148

Other appeals to the high court Constitutional writs [9.590] In addition to the appellate jurisdiction under s 73 of the Constitution requiring special leave to appeal, an aggrieved party could utilise the original jurisdiction of the High Court and seek one of the constitutional writs such as mandamus or prohibition.149 Under Pt 25 of the HCR, the plaintiff files an application for an order to show cause (Form 12) with supporting affidavits.150

143 Judiciary Act 1903 (Cth) s 26; HCRr 50.01. On an application to refer an application for special leave to an enlarged court, costs are in the discretion of the court: r 50.01. 144 R v Whitworth (1988) 164 CLR 500. 145 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34. 146 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [279]. In Kuczborski v The Queen (2014) 254 CLR 51; [2014] HCA 46 the High Court awarded costs against the unsuccessful appellant who challenged the validity of the Queensland “anti-bikie” legislation. This appeal was not, however, an appeal against conviction or sentence but rather a quasi-civil proceeding seeking declaratory relief, and the normal rule in civil proceedings is that costs follow the event. 147 R v Khazaal (2012) 246 CLR 601; [2012] HCA 26 at [96]. 148 An example is United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60. 149 The High Court has jurisdiction to entertain an application for one of the constitutional writs pursuant to s 76 of the Constitution and s 30(a) of the Judiciary Act 1903 (Cth). 150 The relevant High Court rule for certiorari (Form 13) is r 25.06, for mandamus (Form 14) it is r 25.07, for habeas corpus (Form 15) it is r 25.09 and for prohibition (Form 16) it is r 25.20.

[9.600]

9 Appeals to the High Court

471

Case Stated [9.600] On an application for one of the constitutional writs, the parties can “state a case” for the opinion of the Full Court of the High Court.151 Through this mechanism the High Court can declare the correct legal principle in answer to the question(s) posed in the Case Stated. A single judge can state a case pursuant to the Judiciary Act 1903 (Cth) s 18 or, under HCR r 27.08, the parties can agree to state questions of law for the opinion of the Full Court. The questions in a Case Stated cannot be of a hypothetical nature and must relate to the issues before the court. The Case Stated procedure can be used where the appeal is not against a conviction or a sentence but, rather, the aggrieved plaintiff is arguing that a legislative provision is invalid or that the actions of an official are unlawful. Strictly speaking, a Case Stated is not an appeal in the sense that an appellant is arguing that a judgment below is in error, but because it is an important mechanism by which the High Court can review legislation and conduct relating to criminal justice administration, it is included in this part of the chapter. The following are some examples. In Kuczborski v The Queen152 the plaintiff challenged the validity of the Queensland Vicious Lawless Association Disestablishment Act 2013 and other Acts. The plaintiff sought relief in the original jurisdiction of the High Court. The parties agreed on a number of questions in a special case referred to the Full Court. Section 76(1) of the Constitution and s 30(a) of the Judiciary Act 1903 (Cth) gave the High Court jurisdiction to hear the application. The court held that the plaintiff did not have standing to challenge the legislation and, in any event, the legislation was not invalid. In DPP (Cth) v Keating153 the whole of the proceedings in the Magistrates Court of Victoria were transferred to the High Court154 and Hayne J stated a case for the opinion of the Full Court of the High Court. The case concerned the duty of a person in receipt of a Centrelink pension to disclose to the Department of Social Security their changed financial circumstances. The orders of the High Court were constituted by the court’s answers to the questions in the Case Stated. 151 For a history of the Case Stated procedure, see Harmonisation of Criminal Appeals Working Group, Harmonisation of Criminal Appeals Legislation, Discussion Paper (2010) Ch 14. 152 Kuczborski v The Queen (2014) 254 CLR 51; [2014] HCA 46. 153 DPP (Cth) v Keating (2013) 248 CLR 459; [2013] HCA 20. 154 The power to remove the whole proceedings to the High Court is derived from the Judiciary Act 1903 (Cth) s 40. Once the case is removed into the High Court, the HCR apply to the proceedings: r 1.04. Application for removal of a case is made using Form 17: r 26.01. In DPP (Cth) v Keating (2013) 248 CLR 459; [2013] HCA 20 the High Court answered the questions posed and the answers constituted the orders of the court. The whole case was then removed back into the Magistrates’ Court of Victoria.

472

Criminal Appeals and Reviews in Victoria

[9.600]

In X7 v Australian Crime Commission155 the plaintiff sought to challenge the lawfulness of the Australian Crime Commission (ACC) examining the plaintiff in respect to matters for which he was facing charges. The plaintiff commenced proceedings against the ACC in the original jurisdiction of the High Court seeking declarations and an injunction. The parties stated a case consisting of two questions for the opinion of the Full Court. The High Court held that the relevant legislation did not permit the examiner to conduct the examination of the plaintiff. In Crump v The Queen156 the plaintiff commenced proceedings in the original jurisdiction of the High Court seeking a declaration that particular legislation was invalid. The plaintiff sought a declaration. The parties stated a special case for the opinion of the High Court. The High Court held that the relevant legislation was valid. In DPP (Cth) v JM,157 the Commonwealth DPP appealed to the High Court from the decision of the Victorian Court of Appeal to remit a set of questions posed by Weinberg J in a “Case Stated” to the Court of Appeal, discussed below in Part 3.158

155 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29. 156 Crump v The Queen (2012) 247 CLR 1; [2012] HCA 20. 157 DPP (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30. 158 The High Court held that the Victorian Court of Appeal had erred in remitting the questions back to Weinberg J and upheld the appeal.

[9.630]

9 Appeals to the High Court

473

Appendix 1 Snapshot of Criminal Appeals to High Court January 2012–30 August 2016 [9.610] In order to provide a sample of the type of criminal appeals heard and determined by the High Court, the authors examined all criminal appeals to the High Court over the last three years (January 2012–30 August 2016). Of the 70 cases examined, the following results emerged: Appellant and decision appealed Appeal by accused against conviction: 35 Appeal by accused against sentence: 13 Appeal by offender against some other decision or order: 5 Appeal by Crown against sentence: 3 Appeal by Crown regarding an acquittal: 2 Appeal by Crown/State against other decision or order: 11 Other: 1159 It can be seen that the bulk of the appeals to the High Court are commenced by the person convicted (54) but the Crown (or other prosecution authority) is also a regular appellant (16). Appeal based on original jurisdiction of the High Court [9.620] In 8/58 cases the applicant/appellant engaged the original jurisdiction of the High Court seeking some form of declaratory relief. These usually involved the High Court providing an opinion on questions set out in a case stated. Disposition [9.630] In cases where the appeal was upheld, the High Court ordered a new trial in four cases, an acquittal in four cases; in eight cases, the matter was remitted back to the Court of Appeal (or other court) below to be re-decided according to law, and in one case the High Court substituted a verdict of guilty of an alternative offence and remitted the matter back to the Court of Appeal below for sentencing.160 In one case, the High Court quashed the judgment of the NSW Court of Appeal and restored the 159 In Beckett v The Queen (2013) 248 CLR 432; [2013] HCA 17 the issue for the High Court was whether a civil action for malicious prosecution could lie where the DPP entered a nolle prosequi as distinct from the case ending in a verdict of acquittal. Whilst not a criminal appeal as such, this case was included because it related to the administration of criminal justice. 160 Zaburoni v The Queen [2016] HCA 12.

474

Criminal Appeals and Reviews in Victoria

[9.630]

original verdict of guilty of murder.161 The four acquittals by the High Court are perhaps surprising given the general principle that a retrial will be the ordinary outcome of a successful appeal against conviction.

161 R v Baden-Clay [2016] HCA 35.

[9.640]

9 Appeals to the High Court

475

Appendix 2 Sample Forms [9.640] Following are Forms 23 (Application for leave or special leave to appeal) and 23A (Response to application for leave or special leave to appeal). Form 23 – Application for leave or special leave to appeal (rule 41.01.1) IN THE HIGH COURT OF AUSTRALIA No of 20— [ ] REGISTRY BETWEEN: AB Applicant and CD Respondent APPLICATION FOR [LEAVE OR] SPECIAL LEAVE TO APPEAL The applicant applies for [leave or] special leave to appeal from [state part or whole] of the judgment of [state Court, Justice or Judge below] given on [state date]. Part I: [The proposed grounds of appeal and the orders that will be sought if leave or special leave is granted.] Part II: [A concise statement of the leave or special leave questions said to arise.] Part III: [A brief statement of the applicant’s argument in support of the grant of leave or special leave.] Part IV: [Any reasons why an order for costs should not be made in favour of the respondent in the event that the application is refused.] Part V: [A list of the authorities on which the applicant relies, identifying the paragraphs at which the relevant passages appear.] Part VI: [The particular constitutional provisions, statutes and statutory instruments applicable to the questions the subject of the application set out verbatim. If more than one page in length, this Part should be attached as an annexure.] Dated: [eg, 6 October 2003] .......... (signed) .......... (Applicant or the legal practitioner representing the Applicant)

476

Criminal Appeals and Reviews in Victoria

[9.640]

To: The Respondent [address] TAKE NOTICE: Before taking any step in the proceedings you must, within 14 DAYS after service of this application, enter an appearance in the office of the Registry in which the application is filed, and serve a copy on the applicant. THE APPLICANT IS REPRESENTED BY: [name of firm and address for service, telephone and facsimile numbers, and email address] OR THE APPLICANT’S ADDRESS FOR SERVICE IS: [if the applicant is unrepresented — address for service, telephone and facsimile numbers, and email address]

[9.640]

9 Appeals to the High Court

477

Form 23A – Response to application for leave or special leave to appeal (rule 41.05.3) IN THE HIGH COURT OF AUSTRALIA No of 20— [ ] REGISTRY BETWEEN: AB Applicant and CD Respondent RESPONSE Part I: [Reasons why leave or special leave should/should not be granted.] Part II: [A brief statement of any factual issues in contention.] Part III: [A brief statement of the respondent’s argument.] Part IV: [Any special order for costs sought by the respondent.] Part V: [A list of the authorities on which the respondent relies, identifying the paragraphs at which the relevant passages appear.] Part VI: [The particular constitutional provisions, statutes and statutory instruments applicable to the questions the subject of the application set out verbatim. If more than one page in length, this Part should be attached as an annexure.] Dated: [eg, 6 October 2003] .......... (signed) .......... (Respondent or the legal practitioner representing the Respondent)

Chapter 10

Appellate Advocacy [10.10] PART 1: INTRODUCTION .............................................................................................. 480 [10.10] Introduction ....................................................................................................................... 480 [10.20] Wants and needs of the appellate court ....................................................................... 480 [10.30] Know the rules and the law ........................................................................................... 482 [10.40] PART 2: CONVICTION AND SENTENCE APPEALS TO THE COURT OF APPEAL .............................................................................................................................. 483 [10.40] Drafting grounds of appeal ............................................................................................ 483 [10.50] Take note of potential appeal grounds ......................................................................... 483 [10.60] The leave hearing ............................................................................................................. 484 [10.70] Tests applicable to leave applications ........................................................................... 485 [10.90] The oral hearing of leave to appeal .............................................................................. 486 [10.100] Grounds of appeal against conviction ........................................................................ 486 [10.110] Unreasonable or unsupportable verdicts .................................................................... 487 [10.130] Substantial miscarriage of justice: Baini v The Queen ............................................. 492 [10.140] Types of errors or irregularities ................................................................................... 494 [10.150] Post Baini v The Queen ................................................................................................. 495 [10.180] Grounds of appeal against sentence ........................................................................... 499 [10.190] Manifest excess and current sentencing practices in Victoria ................................ 500 [10.200] Statutory sentencing guidelines ................................................................................... 502 [10.210] Plea transcript and sentencing remarks ..................................................................... 503 [10.220] Common law principles ................................................................................................ 504 [10.230] House v The King ........................................................................................................... 505 [10.240] PART 3: DRAFTING, ANALYSIS, EDITING AND PERSUASION ....................... 506 [10.240] Consolidating information when drafting grounds of appeal and the written case .................................................................................................................................... 506 [10.250] Structure of appeal grounds and written case .......................................................... 507 [10.260] Be clear about the grounds to be relied upon ........................................................... 507 [10.270] Identify and analyse the issue ...................................................................................... 508 [10.280] Write an ending ............................................................................................................... 508 [10.290] Drafting errors ................................................................................................................. 508 [10.300] Preparing oral submissions based on the written case ........................................... 509 [10.310] Answering questions posed by the court .................................................................. 510 [10.320] Oral argument on an interlocutory appeal ................................................................ 512 [10.330] PART 4: APPEALS TO THE HIGH COURT .............................................................. 512 [10.330] Appearing in the High Court of Australia ................................................................ 512 [10.340] Oral argument in the High Court ............................................................................... 515 [10.350] PART 5: CONCLUDING COMMENTS ...................................................................... 516 [10.350] Advocacy and wellbeing ............................................................................................... 516

480

Criminal Appeals and Reviews in Victoria

[10.10]

[10.360] Dealing with negative responses from the court ...................................................... 516 [10.370] Managing anxiety ........................................................................................................... 517

PART 1: INTRODUCTION Introduction [10.10] A natural advocate is a rare creature who possesses rare qualities. Every word they utter compels us to listen, they appear to know all aspects of the law, have a lovely tone when they speak and have a physical presence that is commanding. All these qualities make their performance seem effortless. No course on advocacy, no articles or textbooks can replace a natural gift, but they can help us to improve our skills. This chapter on advocacy, is not only for the novice, but also for the experienced advocate who may not have considered what it is they embark upon when they choose to enter the Court of Appeal, or any appellate court, to argue an appeal point. This chapter is a breakdown of what preparation is required, the importance of written submissions and the decisions made as to the tack to be taken when appearing before such a specialised court. The relevant principles are discussed in the context of advocacy and the Court of Appeal, although most of the general principles and approaches also apply to other appeals. Where there are differences, these are dealt with in this chapter. Appellate advocacy in the High Court is a specialist field that is discussed separately. While Chapter 6 sets out the law and procedure relating to conviction and sentence appeals, this chapter focuses on the ultimate goal, which is communicating to the court the grounds of appeal on behalf of the applicant or appellant.

Wants and needs of the appellate court [10.20] There are major differences in the way that hearings are conducted in an appellate court as opposed to a trial court. The experience of both counsel and judges varies greatly. Being opposed to an inexperienced opponent presents many forensic challenges. While appearing before a judge inexperienced in criminal law, places a greater onus on counsel to assist the court. Many of the principles that apply, particularly in criminal procedure, are matters of experience and cannot be grasped through case law or statute law. These things need to be considered, bearing in mind that any decision made may have consequences on an appeal. In a trial the ultimate focus of counsel is on communicating to the jury. While it is not possible to directly interact with them, it is possible to speak to them through the way the evidence is presented, or a witness is

[10.20]

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cross-examined, or the way in which a closing address is framed. The aim should be to give the jury what they need in order to decide the issues they have to determine. Whether prosecuting or defending, the aim in a trial is to ethically present the client’s case to the jury to assist them in reaching their verdict. Similarly, on a plea, counsel’s aim should be to assist the judge to impose an appropriate sentence that is the best outcome for their client (if defence), or within the permissible range (if prosecuting). In this regard trial advocacy is a predictive exercise. Unlike a trial, a hearing in the Court of Appeal has set parameters. A transcript of the trial containing all discussions, legal arguments, witnesses’ evidence and rulings is available. The ground(s) of appeal detail the points of contention. In persuading the court to accept or reject a ground, an advocate’s primary focus is on listening, and then addressing the court regarding what concerns the appellate judges. The presentation of a case on an appeal is therefore, interactive. In court, observers and participants will regularly hear appeal justices say to counsel: “We have read the appellant’s written submissions so there is no need to read them out.” Then, quite regularly, the advocate will say “Yes your Honours”, but then go on to do precisely what they have been asked not to do. In this situation the advocate has not turned his or her mind to the needs or wants of the court they are appearing before, nor are they listening to the judges and responding to them appropriately. The advocate has started from their default position, which is a presentation based on their experience as a trial advocate where the argument starts from the beginning. An advocate’s opening words to the court are generally the only time he or she will have the undivided attention of the court. The first thing said will certainly impact upon the court’s state of mind. A short, sharp definitive statement that indicates the essence of the submission is what the court wants to hear. An advocate’s response to anything the court asks will indicate whether they are listening and responding to the court’s concerns or needs. Therefore, if the court says “We’ve read your submissions, there is no need to read them out”, a response of simply reading them out sends a signal to the bench that the advocate is not listening. Judges ask questions to test the arguments being put. If the response is not appropriate, the opportunity to have an input into the decision will be lost. Not only will the advocate’s effectiveness be lost but, worse still, the court will lose confidence in the advocate as counsel. It will then be an uphill battle any time there is a novel point or a difficult argument to be made. Remember, an advocate’s reputation is everything. Having established that the court has read the submissions, it is then possible to choose to proceed in one of two ways. Counsel can choose to focus on the ground that is the most promising and develop the argument

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made in the written submissions and then adopting the rest of the grounds or submissions without going through them. Alternatively, counsel can address the court on each ground, making sure the argument is developed only as far as is needed in order to promote that ground. The role of counsel is not simply to repeat the written arguments. If responding to an application for leave to appeal or the appeal itself, counsel should spend time listening carefully to the concerns raised by the court regarding his or her opponent’s arguments. When responding, those concerns should be met immediately rather than by simply reading through the matters contained in the written response. Addressing the court’s concerns immediately indicates a preparedness to listen and a willingness to assist the court. It is worthwhile working out a system whereby each particular judge’s questions are noted, and thus his or her concerns. The advocate is then in a position to address those questions and concerns in their oral response. Remember that, unlike a trial court, in the Court of Appeal counsel address appeal judges on judgments they have written. It is not necessary to lecture them on the applicable law. Arguments should centre on how the evidence, arguments or directions impact on the ground counsel is arguing. The quickest way to attract a negative reaction from the court is to tell the court what it meant by its own judgment. Another way of attempting to gauge the type of response or concerns the advocate will face (upon discovering the constitution of the court) is to read over the cases cited in the submissions filed and note whether any of the cases are in fact judgments written by the judges assigned to the current application or appeal. Knowing the views of the judges assigned is not about pandering to them, it is about focusing on where their concerns may lie and on knowing which judge will require more convincing. After all, if the object of advocacy is to persuade a decision-maker to accept the propositions advanced by the advocate, then the advocate must consider the position previously taken by that particular decision-maker. This can only be done if counsel is able to identify the issues and see the problem from the perspective of the decision-maker.

Know the rules and the law [10.30] Knowing the procedural rules and understanding the law supporting the grounds of an application or appeal are vital. Many advocates who appear for the first time read the applicable sections without really digesting them. It is imperative that the law is extensively researched and that counsel has a full command of the details of the case. The facts of the trial set the parameters within which the legal aspects of the appeal are determined. It is important to be completely across the facts of the trial, but it must be remembered that it is generally legal arguments that are being placed before the court to show why the trial or

[10.50]

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sentence was unfair. An advocate’s submissions to the court are not a re-run of counsel’s final address to the jury or submissions on plea; they are a legal argument charting the error that occurred during the running of his or her client’s case. The main focus, therefore, is in being able to demonstrate an error. The facts dictate the way the advocate will present the appeal and that presentation will be vastly different to the way in which the trial was conducted. Trial counsel often forget this distinction, and as a consequence become confused and flustered when an appeal judge challenges the advocate on their presentation. The advocate can misinterpret the interjection as being denied an opportunity to present their case, or as a judge having already made up his or her mind. This is not the case. This is the method by which the appeal judge is simply trying to draw counsel’s attention to the issue in the appeal.

PART 2: CONVICTION AND SENTENCE APPEALS TO THE COURT OF APPEAL Drafting grounds of appeal [10.40] Chapter 6 of this book1 sets out the statutory rights to appeal against a conviction and/or sentence following a trial on indictment. This chapter focuses on how to practically deal with these requirements, both in the written submissions and ultimately in the oral presentation of those written submissions before the Court of Appeal. Here it is necessary to go over the grounds of appeal against conviction and sentence in a different way than was covered in Chapter 6 – that is, in this chapter the grounds are explained in a way that will assist in the drafting of appeal documents. Key grounds are listed and explained so that when potential grounds of appeal are being considered, this chapter will serve as a checklist, which will be of assistance in understanding what to look for. Before discussing the grounds, the following are some suggestions regarding the process involved in drafting the grounds of appeal for both conviction and sentence appeals.

Take note of potential appeal grounds [10.50] Trial counsel should (at the very least) have made notes of possible appeal points during the trial. Doing this during the running of a trial, when transcript is released daily, is far easier than reading through the trial transcript again from start to finish. Impressions as to the way a situation unfolded will be fresh. Trying to recall the fine details and 1 For appeals against convictions, see Chapter 6, Part A at [6.20] and for appeals against sentences, Part B at [6.610].

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impressions after the trial has concluded and whilst preparing for the next trial makes note-taking much harder and may lead to shortcuts and errors in drafting. It is preferable, and it is assumed by the court, that counsel who ran the trial or plea has written an advice on the prospects of the success of an appeal against conviction and/or sentence.2 If an advocate is not trial counsel, he or she should speak to trial counsel and ask them if there are any issues they should look out for that could constitute a ground of appeal. When reading the trial transcript it is important to list potential grounds and the page references of the evidence supporting this ground. Even if all of the material does not make its way into the written submissions, it is necessary to know where most of the material is located within the transcript in order to better assist the court during the appeal. This is an arduous process but worthwhile. Taking shortcuts and thinking that references can be found later will mean a lot of time is wasted looking for that one line that may make a difference. To be able to separate the evidence into potential issues, the advocate needs to know the law in regard to the appeal process. To assist in drafting arguments, reference should be had to excellent resource materials, such as The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts.3 The ability to write an argument in an efficient and compelling way is a skill that must be worked at – it rarely comes easily. Taking on board suggestions from resource materials such as this will make light work of the learning process.

The leave hearing [10.60] In broad terms, any person who is convicted of4 or sentenced for5 an offence by an originating court may appeal to the Court of Appeal to have the conviction overturned or the sentence reduced. Before an appeal against conviction or sentence can be heard by the Court of Appeal, a notice of application for leave to appeal must be filed with the court.6 The notice to be filed with the court allows for the application for leave to be determined on the papers filed with the court, or by way of an oral hearing based on the arguments contained in the papers. If the application for leave to appeal is not determined “on the papers”, then a 2 See Supreme Court, Practice Direction No 2 of 2011 s 2. This Practice Direction applies to both appeals against conviction and sentence and is a critical reference for all forms of advocacy in the Court of Appeal. 3 B A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (3rd ed, OUP, New York, 2014). 4 Criminal Procedure Act 2009 (Vic) (“CPA”) s 274. 5 CPA s 278. 6 For the procedure and forms that are applicable, see Chapter 6 at [6.370] and [6.980].

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leave hearing will be conducted in order to determine whether leave to appeal will be granted. If leave is granted, the appeal will subsequently be heard and determined by the Court of Appeal.7

Tests applicable to leave applications Conviction appeals [10.70] The test applied by the court when determining a leave application on an appeal against conviction is whether one or more of the grounds of the application is “reasonably arguable”.8 The meaning of “reasonably arguable” was discussed in R v Raad,9 where Callaway J stated: I do not think that it is wise or profitable to attempt to define “reasonably”. The concept of reasonableness pervades the common law and part of its utility lies in its breadth and flexibility. It is enough to say that not every bona fide contention is reasonably arguable and that an experienced judge of appeal, apprised of a ground in advance and given an opportunity to reflect on it, is often able to conclude that it is not reasonably arguable.10

Sentence appeals [10.80] In respect to an application for leave to appeal sentence, the statutory test is found in s 280 of the CPA, namely: (1) The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if – (a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or (b) there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.

The court in Raad stated, in regard to the ground of manifest excess: [I]t has to be remembered that a court of three would not be entitled to substitute its own opinion simply because it differed from the sentencing judge. The sentence would have to be shown to be outside the range, for the primary sentencing discretion is confided to the judge at first instance. It may be reasonably arguable that a sentence is severe, even very severe, without its being reasonably arguable that it is outside the range. When that is steadily borne in mind, it is often appropriate to say that it is not even reasonably arguable that a sentence is manifestly excessive.11 7 For the procedure and forms that are applicable, see Chapter 6 at [6.370] and [6.980]. 8 See R v Blick (1999) 108 A Crim R 525; [1999] VSCA 211 at [19]; R v Raad (2006) 15 VR 338; [2006] VSCA 67. 9 R v Raad (2006) 15 VR 338; [2006] VSCA 67. In R v Raad the appeal was against sentence not conviction. At the time of this appeal the test for granting leave to appeal sentence was found at common law, but since 2009 the test for granting leave in a sentence appeal is now found in the CPA s 280(1). 10 R v Raad (2006) 15 VR 338; [2006] VSCA 67 at [27]. 11 R v Raad (2006) 15 VR 338; [2006] VSCA 67 at [28].

486

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This passage is particularly important as advocates often forget that the ground of manifest excess is not about what a judge in the Court of Appeal would have done, it is about whether it is reasonably arguable that the sentence is outside the range. The basis for each ground must be that there was an appealable error. The appeal process is not the appropriate venue for airing a client’s grievances unless those grievances establish that there was an appealable error during the course of the trial or in determining a sentence.

The oral hearing of leave to appeal [10.90] The oral hearing for a leave application is different to the hearing of the appeal itself. An oral hearing is simply to determine whether, in the case of a conviction appeal, the ground(s) are “reasonably arguable”, or, in the case of a sentence appeal, there is a reasonable prospect that the court would impose a less severe sentence or would reduce the total effective sentence.12 The oral hearing is generally not an opportunity to argue the appeal in full. Therefore, it is anticipated that the hearing will be much shorter and this is reflected in the court’s Practice Direction No 2 of 2011, which directs that the applicant be given a 15-minute time limit and the Crown only 10 minutes.13 In reality, however, the time restrictions are not strictly adhered to. The hearings for leave applications are still shorter than the appeal itself, but generally not as short as the Practice Directions indicate. In an application for leave to appeal, arguments should be kept short and focused. Advocates should lead with their best point and make sure their argument is succinct. There is no time to work up to an argument. The test is confined and it is not an opportunity to run the appeal. A short, sharp argument demonstrating why the ground is reasonably arguable will bring the advocate much closer to jumping their first hurdle and being granted leave to appeal. The longer he or she speaks, the higher the risk they will talk the court out of granting leave. If the applicant has not requested an oral hearing, a single appeal judge will determine the appeal based on the written materials (“on the papers”). If the judge refuses to grant leave, the applicant can elect to renew the application at an oral hearing before two or more appeal judges.14

Grounds of appeal against conviction [10.100] Appeals against conviction are dealt with extensively in Chapter 6.15 In this chapter, the law will be referred to in the context of drafting or oral argument. 12 If the grounds are arguable, leave is granted, if not, leave is refused: CPA s 280. 13 Practice Direction No 2 of 2011 s 11(7). 14 CPA s 315(2). See also Chapter 6 at [6.1070]. 15 See Chapter 6, Part A at [6.20]–[6.240].

[10.110]

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Under CPA s 276(1) and (2), 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. (2) In any other case, the Court of Appeal must dismiss an appeal under section 274.16

The most difficult task is to determine the grounds of appeal. In order to assist in determining those grounds, this chapter raises a number of specific grounds and explains the basis for each. In doing so, reference is made to a study undertaken by Tilmouth J17 in regard to successful criminal appeals within Australia. This study, published in 2015, covered all successful criminal appeals across Australia in the seven-and-a-halfyear period from 1 June 2005 to 31 December 2012. The study identified the main subjects of error in conviction appeals. Of the 614 successful criminal appeals across Australia, the highest number of successful appeals (83) was on the basis of “unreasonable or unsupportable” jury verdicts.18

Unreasonable or unsupportable verdicts19 [10.110] Under CPA s 276(1)(a), the first ground of an appeal against conviction is that the verdict of the jury is “unreasonable or cannot be supported having regard to the evidence”. In other words, no jury acting properly upon the whole of the evidence could have convicted the accused.20 In determining this ground, the Court of Appeal must pay full regard to the fact that the jury had the benefit of having seen and heard the witnesses. However, where the evidence lacks credibility for reasons that are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt that a reasonable jury ought to have experienced.21 A guilty verdict is reasonably open if there was no aspect of the evidence that obliged the jury to come to a different conclusion.22 16 For further commentary, see Chapter 6 at [6.80]–[6.240]. 17 Judge S Tilmouth, “The Wrong Direction: A Case Study and Anatomy of Successful Australian Criminal Appeals” (2015) 40 Australian Bar Review 18. 18 Judge S Tilmouth, “The Wrong Direction: A Case Study and Anatomy of Successful Australian Criminal Appeals” (2015) 40 Australian Bar Review 18 at 21. 19 See also Chapter 6 at [6.90]. 20 M v The Queen (1994) CLR 487 at 493; see also Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR 532; Knight v The Queen (1992) 175 CLR 495 at 504–505 and 511; Jones v The Queen (1997) 191 CLR 439. 21 M v The Queen (1994) CLR 487 at 494. 22 R v Klamo (2008) 18 VR 644 at [38].

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In Libke v The Queen,23 the court indicated that “the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard”. Despite not expressly referring to a substantial miscarriage of justice, concluding that the jury’s verdict is unreasonable or unsupportable does in fact constitute a substantial miscarriage of justice.24 The burden rests with the appellant to demonstrate that the verdict was not open.25 For clarity, many cases in the appellate court refer to the term “unsafe and unsatisfactory” verdict: “Those words are to be taken as equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’”.26 How to prepare an unreasonable or unsupportable verdict argument [10.120] Where the Crown’s case is based on one piece of direct evidence, focusing on that evidence and demonstrating how it is unable to support a guilty verdict is a discreet exercise. More often than not, however, the Crown’s case against an accused is based on circumstantial evidence. The error most commonly made in drafting an unreasonable or unsupportable verdict argument in a circumstantial case is in focusing on one piece of evidence, separating it out from other evidence and relying upon that one piece of evidence as the basis for the argument. It must be remembered that in a circumstantial case the whole of the evidence must be examined before the Court of Appeal can finally determine the question of whether the verdict was unreasonable or unsupportable.27 On this point, the court in R v Hillier28 stated: Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible

23 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]. 24 Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [19]. 25 Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [18]. 26 MFA v The Queen [2002] 213 CLR 606; [2002] HCA 53 at [58]. 27 In regard to circumstantial evidence, s 61 – 64 of the Jury Directions Act 2015 details those matters that a trial judge may direct the jury must be proved beyond reasonable doubt. In explaining further ss 63 and 64, s 3 (the definition section of the Act), states that “general directions” means directions concerning matters relating to the conduct of trials generally. This includes amongst other things the drawing of conclusions and the distinction between direct and circumstantial evidence. 28 R v Hillier (2007) 228 CLR 618 at 638; [2007] HCA 13 at [48].

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with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:29 At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”: they should consider the accumulation of the evidence: cf Weeder v The Queen.30 Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider “the weight which is to be given to the united force of all the circumstances put together”: per Lord Cairns, in Belhaven and Stenton Peerage,31 cited in R v Van Beelen;32 and see Thomas v The Queen33 and cased there cited.

The Court of Appeal in Dragojlovic v The Queen34 explained its task in determining this ground as being: to look at the evidence presented by the Crown in its entirety, and to determine whether it had established the hypothesis for which the Crown contended. If, upon a consideration of the whole of the evidence, an innocent hypothesis cannot be excluded, or if there is a lacuna in the Crown case that could be said to represent a “solid obstacle to reaching a conclusion beyond reasonable doubt”, the ground would be made out.35

In R v Klamo,36 the court clearly detailed the four-step approach by appellate courts in considering the “unsafe and unsatisfactory” ground.37 This case involved a charge of unlawful and dangerous act manslaughter in regard to the death of a baby who sustained head trauma and died of a subdural haemorrhage. The court held that the verdict was contrary to expert medical evidence, which identified three possible causes of haemorrhage. This case is important reading as the facts and evidence constitute a clear example of how the court approaches this ground. 29 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535. 30 Weeder v The Queen (1980) 71 Cr App R 228 at 231. 31 Belhaven v Stenton Peerage (1975) 1 App Cas 278 at 279. 32 R v Van Beelen (1973) 2 SASR 353 at 373. 33 Thomas v The Queen [1972] NZLR 34 at 37–38, 40. 34 Dragojlovic v The Queen (2013) 230 A Crim R 226; [2013] VSCA 151 at [277]. 35 Dragojlovic v The Queen (2013) 230 A Crim R 226; [2013] VSCA 151 at [277], referring to R v Shah [2007] SASC 68 at [4]; and R v Vjestica (2008) 182 A Crim R 350; [2008] VSCA 47. 36 R v Klamo (2008) 18 VR 644; [2008] VSCA 75. 37 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [38]; see also Chapter 6 at [6.90].

490

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The recent decision of the High Court in The Queen v Baden-Clay38 is important to consider where the Crown case is circumstantial. The ground of appeal in this case was that the jury’s verdict was unreasonable in circumstances where it is argued that the prosecution had not excluded the (defence) hypothesis beyond reasonable doubt. The court said the following:39 The principles concerning cases that turn upon circumstantial evidence are well settled.40 In Barca v The Queen,41 Gibbs, Stephen and Mason JJ said: “When the case against an accused person rests substantially upon the circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King.42 To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen;43 see also Thomas v The Queen”.44

The court went on to say:45 For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon consideration of all the facts in evidence”.46

Therefore, in drafting a ground of appeal on this basis, counsel must not only be able to direct the court to an alternative hypothesis that is consistent with innocence but must also be able to direct the court to the evidence at trial which provides evidentiary support for that alternative hypothesis. If the alternative hypothesis is simply based on a theoretical possibility, or a mere possibility, that is insufficient. The High Court also considered the role of the jury and said (at [65]-[66]): It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.”47 Given the central place of the jury trial in the 38 R v Baden-Clay [2016] HCA 35. 39 R v Baden-Clay [2016] HCA 35 at [46]. 40 Barca v The Queen (1975) 133 CLR 82 at 104. 41 Barca v The Queen (1975) 133 CLR 82 at 104. 42 Peacock v The King (1911) 13 CLR 619 at 634. 43 Plomp v The Queen (1963) 110 CLR 234 at 252. 44 Thomas v The Queen (1960) 102 CLR 584 at 605–606. 45 R v Baden-Clay [2016] HCA 35 at [47]. 46 Peacock v The King (1911) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133 CLR 82 at 104. 47 Hocking v Bell (1945) 71 CLR 430 at 440. See also Brennan v The King (1936) 55 CLR 253 at 266; Sparre v The King (1942) 66 CLR 149 at 154; Keeley v Mr Justice Brooking (1979) 143 CLR 162 at 188; Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 601; MacKenzie v The Queen (1996) 190 CLR 348 at 365; MFA v The Queen (2002) 213 CLR 606 at 621 [48].

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administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect,48 the setting aside of a jury’s verdict on the ground that it is “unreasonable” … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.49 … With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”50

Therefore, in preparing this argument, it is essential that the evidence as a whole be examined and all of the deficiencies in the evidence detailed. This will assist in creating a clear path for the Court of Appeal to decide whether there is a solid obstacle that prevents a conclusion beyond reasonable doubt. The written submissions must be able to identify the deficiencies in a succinct, easy-to-follow format. Simply transcribing entire pages of evidence is unhelpful. Listing each category of evidence and listing the deficiencies in clear sentences, as well as footnoting the relevant transcript page numbers, are essential. Given the written submissions form the basis of the oral presentation at the appeal, it is essential that the written format is easy to follow so that your argument is also easy to follow. The submissions are not an opportunity to simply complain about every aspect of the trial. The argument must be pointed. The submissions must be based on the evidence presented before the jury at the trial. This is not an opportunity for counsel to raise an alternate hypothesis that was never raised before the jury. In Lowe v The Queen,51 reference was made by the Court of Appeal to 19 circumstantial facts relied upon by the Crown and used by the trial judge in his charge to the jury. The court also made reference to a schedule provided by the Crown, on appeal, which set out those facts and underlying evidence.52 48 Kingswell v The Queen (1985) 159 CLR 264 at 301; Brown v The Queen (1986) 160 CLR 171 at 201; Katsuno v The Queen (1999) 199 CLR 40 at 63-64 [49]; Cheng v The Queen (2000) 203 CLR 248 at 277-278 [80]; Alqudsi v The Queen (2016) 90 ALJR 711; 332 ALR 20; [2016] HCA 24 at 715 [2], 718 [16], 753 [195] (ALJR), at 22, 26, 73 (ALR). 49 M v The Queen (1994) 181 CLR 487 at 494; MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]-[51], 623 [56]. 50 M v The Queen (1994) 181 CLR 487 at 494–495. See also R v Hillier (2007) 228 CLR 618 at 630 [20] and the authorities cited. 51 Lowe v The Queen [2015] VSCA 327. 52 Lowe v The Queen [2015] VSCA 327 at [205].

492

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It is important to go through the same exercise when dealing with a circumstantial case. It will give a true indication as to whether the ground is reasonably arguable. If the evidence is scant then the argument is sound. If, however, there are many individual circumstances, it will be necessary to seriously reconsider whether this ground of appeal is sustainable.

Substantial miscarriage of justice: Baini v The Queen [10.130] The second and third grounds of appeal listed in the CPA s 276(1)(b) and (c) will be dealt with in this section. The second ground of appeal is that “as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice”.53 In other words, where an error or irregularity has occurred and the court cannot be satisfied that the matter did not affect the outcome, a substantial miscarriage of justice has occurred.54 This applies even if it was open to the jury to convict. However, if the conviction was inevitable, the court must conclude that there was not a substantial miscarriage of justice.55 Under CPA s 276(1)(c) the third ground of an appeal against conviction56 is that for “any other reason” there has been a substantial miscarriage of justice. This is a catch-all provision. It is there to include an event that is not covered by s 276(a) or (b) of the CPA. The three grounds of appeal contained in s 276 of the CPA require (either expressly or by implication) there to be a “substantial miscarriage of justice” before an appeal can be successful. An error or irregularity (even if demonstrated) will only result in a successful appeal if it can be demonstrated that the error or irregularity led to a substantial miscarriage of justice. The meaning of “substantial miscarriage of justice” is therefore critical to appellate advocacy. In Baini v The Queen, the key question for the High Court was: “[W]hat do s 276(1)(b) and (c) mean when they refer to ‘a substantial miscarriage of justice’?”57 The High Court also had to consider how the question, “has there been a substantial miscarriage of justice?” is determined.58 In order to assist in establishing what constitutes “a substantial miscarriage of justice”, the High Court recognised that “[t]he possible kinds of miscarriage of justice with which s 276(1) deals are too numerous 53 CPA s 276(b). For further analysis, see also Chapter 6 at [6.110]. 54 Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [26]. 55 Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [26]. 56 For further analysis, see Chapter 6 at [6.140]. 57 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [24]. This was an appeal against the decision of the Victorian Court of Appeal in Baini v The Queen (2011) 33 VR 252. 58 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [25].

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and too different to permit prescription of a singular test.”59 The court then gave three examples (not exhaustive) of the kinds of miscarriage of justice covered by s 276 of the CPA:60 1. “where the jury have arrived at a result that cannot be supported”. 2. “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”. 3. “where there has been a serious departure from the prescribed processes for trial”. The High Court also stated that whether there has been: a “substantial miscarriage of justice” for the purposes of s 276(1)(b) and (c) may be affected by the strength of the prosecution case at trial. In some cases, it may be possible for an appellate court to conclude that there has not been “a substantial miscarriage of justice” because despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the appellant was guilty of the crime alleged.61

The High Court made three points in regard to this statement. First, that the nature of the error or irregularity may prevent the appellate court from coming to a conclusion as to the strength of the Crown’s case because of the natural limitations on the appellate task.62 Second, the appellate court’s finding that the guilty verdict was inevitable is relevant to determining whether there has been “a substantial miscarriage of justice”, although this finding will not in every case answer the question.63 Third, the inquiry to be made in regard to s 276(b) and (c) of the CPA is whether a guilty verdict was inevitable and not whether it was open (which is only relevant to s 276(a)).64 However, in cases where: evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt.65

The court further stated that: an accused’s guilt must be established by the prosecution at trial beyond reasonable doubt. It is not to be established by speculation about what a jury, this jury, or a reasonable jury might have done but for the error. Nothing short of satisfaction beyond reasonable doubt will do, and an appellate court can only be satisfied, on the record of the trial, that an error of the kind which 59 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [26]. 60 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [26]. 61 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [28]. 62 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [29]. 63 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [30]. 64 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [32]. 65 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [32].

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occurred in this case did not amount to a “substantial miscarriage of justice” if the appellate court concludes from its review of the record that conviction was inevitable.66

Ultimately, the High Court found that the Victorian Court of Appeal67 had not gone far enough in its review of the record. It only went so far as determining that the verdict of guilty was “open” to the jury rather than “inevitable”. The appeal was therefore allowed and the matter was remitted to the Court of Appeal for its further consideration. The subsequent judgment of the Victorian Court of Appeal (upon the application for leave to appeal being remitted from the High Court of Australia) helpfully sets out the High Court’s reasoning: see Chapter 6 at [6.120]. On a further review of the record, the Victorian Court of Appeal ultimately found that a guilty verdict beyond reasonable doubt was “inevitable”.68

Types of errors or irregularities [10.140] In Tilmouth’s study,69 the 614 successful criminal appeals across Australia (excluding the 83 for unreasonable or unsupportable verdicts) were due to errors or irregularities that resulted in a substantial miscarriage of justice. The highest number of errors or irregularities was found in the following categories: 1. Tendency and coincidence evidence, propensity and similar fact evidence (52 successful appeals): generally due to inadequate directions, the wrongful admission of evidence, erroneous joinder and the incurable risk of impermissible propensity reasoning. 2. Procedural errors in summing up (42 successful appeals): generally as a result of a failure to adequately put the defence case, prejudicial comments, undue intervention by the judge during the examination of witnesses and in making scathing criticisms of counsel in the presence of the jury. 3. Elements of the offence and the mental element of intention (59 successful appeals): where judges have simply misconstrued or misunderstood the elements of the offences; also failure to correctly establish the specific intent required in an offence. 4. Complaint evidence (28 successful appeals): generally as a result of wrongly-admitted evidence, where a direction as to proper use was not strong enough, there were inadequate directions, the cross-examination 66 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [33]. 67 Baini v The Queen (2011) 33 VR 252. 68 Baini v The Queen (2013) 42 VR 608; 232 A Crim R 17; [2013] VSCA 157 at [19]–[24] (VR), at [24] (VSCA). 69 Judge S Tilmouth, “The Wrong Direction: A Case Study and Anatomy of Successful Australian Criminal Appeals” (2015) 40 Australian Bar Review 18. A total of 51 different categories of error were identified in the study.

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of the complainant in regard to sexual history was disallowed, as was asking or posing the question “why would the complainant lie?” 5. Lies and post-offence conduct (27 successful appeals): this category was fraught with difficulty due to the dangerous circular component of the argument and because of the potential for its impermissible use by a jury. 6. Excesses of prosecuting counsel (25 successful appeals): involved overenthusiastic prosecuting counsel making inflammatory comments in a closing address, failing to disclose evidence, failing to call an exculpatory witness, and making late changes in the Crown case, which caused prejudice. 7. Expert evidence (20 successful appeals): generally regarding admissibility in cases where the evidence goes beyond the witness’s area of expertise. 8. Complicity (19 successful appeals): misdirections by the trial judge regarding the layers of liability and the degree of foresight required. 9. Consent (18 successful appeals): generally occurred in regard to a failure to direct in relation to an awareness of the lack of consent, or as to honest and reasonable, but mistaken, belief as to consent. 10. Self-defence (16 successful appeals): generally involved confusing directions and misdirections to the jury. While this list of some of the grounds is intended to assist practitioners in identifying potential grounds, it is not exhaustive.70

Post Baini v The Queen [10.150] Following the High Court decision in Baini v The Queen,71 there have been several appeals in Victoria on the ground that there was a substantial miscarriage of justice. These cases are helpful in demonstrating the effect Baini has had, in particular, on s 276(1)(b) and (c). The case of Andelman v The Queen,72 for example, not only discussed Baini, but has itself been considered and discussed in subsequent cases.73 Andelman v The Queen [10.160] In Andelman v The Queen74 the appellant was convicted on 85 counts of theft. The Crown alleged that the appellant stole money from parking meters while employed as a coin collector. The appellant was self-represented at trial. During the trial, evidence was led from co-offenders that they had pleaded guilty and been sentenced for similar thefts while on shifts with the appellant. There was also evidence of significant coin deposits into the appellant’s bank account following 45 of 70 Grounds of appeal against conviction are also discussed in Chapter 6 at [6.70]. 71 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59. 72 Andelman v The Queen (2013) 38 VR 659; [2013] VSCA 25. 73 Benson v The Queen [2014] VSCA 51; Bass (a pseudonym) v The Queen [2014] VSCA 350. 74 Andelman v The Queen (2013) 38 VR 659; [2013] VSCA 25.

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the alleged thefts. The evidence of the coin deposits was used for coincidence purposes. However, no coincidence notice was ever served (as required by the Evidence Act 2008 (Vic) s 98(1)). On appeal against conviction, the primary question for the Court of Appeal was whether the evidence of the pleas of the co-accused was admissible in the appellant’s trial. Discussion centred around the question as to whether the trial judge was obliged to raise potential objections to the admissibility of this evidence, and in regard to a potential unreliable evidence warning with respect to a self-represented accused. The ground of appeal was in regard to whether there was a substantial miscarriage of justice in the appellant’s trial as a result of error or irregularity. The Court of Appeal determined that the Crown’s case was strong, but that there was a serious departure from the prescribed processes for trial. The appeal was therefore allowed. The Court of Appeal regarded the following dicta from Baini v The Queen75 as particularly important in arriving at its decision:76 • “Section 276 is not to be interpreted solely by reference to the interpretation given to the common form criminal appeal proviso in Weiss v The Queen.77 Comparing ‘a statute with its legislative predecessor … is only a useful exercise if doing so illuminates the actual text of the new provision’.”78 • “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’.”79 • “With respect to s 276(1)(b) and (c) (with which this appeal is concerned), 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’.”80 • “Those paragraphs also cover cases where ‘there has been a serious departure from the prescribed processes for trial’.”81 • “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’.”82 75 Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59. 76 All the following quotes referring to Baini are from Andelman v The Queen (2013) 38 VR 659; [2013] VSCA 25 at [85]. 77 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81. 78 See Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [20]. 79 See Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [26]. 80 See Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [26]. 81 See Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [26]. 82 See Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [27].

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• “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’.”83 • “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.”84 • “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’.”85 • “In assessing ‘inevitability’, the Court of Appeal must ‘decide that question on the written record of the trial’.”86 • “In cases such as Baini 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’.”87 The court in Andelman went on to say: This reading of the majority’s reasons in Baini demonstrates that s 276 is to be applied on a case-by-case basis, having regard to the particular nature of the error made in the trial. Further, whereas the strength of the Crown case may well be a relevant factor, it is not necessarily determinative.88

The court found that a substantial miscarriage of justice occurred because of the errors in the trial. This conclusion was reached after the court analysed the nature of the errors made at the trial. In regard to a judge’s duty to an unrepresented person, the court stated: [T]he duty upon a trial judge to provide an unrepresented accused with necessary information and assistance is onerous, but it is essential in ensuring a fair trial. The judge’s failure to raise the question of what warnings were necessary in relation to (the appellant’s co-accused’s evidence) was so fundamental that it might have been described, formerly, as going to the “root of the trial”. As counsel for the appellant submitted on the hearing of the appeal, the evidence of (the two co-accused) formed a very large part of the Crown case as it was conducted. Due to his lack of awareness of trial conduct, and the failure of the judge and prosecutor to raise the issues associated with their evidence, it was left but barely tested.89 83 See Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [28]–[29]. 84 See Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [30]. 85 See Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [31]. 86 See Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [32]. 87 See Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [326]. 88 Andelman v The Queen (2013) 38 VR 659; [2013] VSCA 25 at [86]. 89 Andelman v The Queen (2013) 38 VR 659; [2013] VSCA 25 at [88].

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In its concluding remarks, the court stated: Baini makes clear that the strength of the Crown case is not, by itself, a determinant factor in assessing whether a substantial miscarriage of justice occurred. Indeed, this Court’s satisfaction that a conviction was “inevitable” (to use the language of Baini) would not necessarily determine that no such miscarriage occurred. Some serious departures from trial process warrant the conclusion that there has been a substantial miscarriage, regardless of effect. For the reasons we have given, this is such a case.90

This statement by the court in Andelman makes it clear that even if a conviction was inevitable, a serious departure would still constitute a substantial miscarriage of justice and result in a successful appeal. The court allowed the appeal, quashed the convictions, set aside the sentences and ordered a retrial. Baini and post-Baini cases demonstrate that when drafting submissions on the ground of a substantial miscarriage of justice, it is extremely important that the error not only be identified, but that the flow-on effect of such an error is also made clear.91 Objections and directions [10.170] In assessing errors and irregularities to be relied upon, it is important to identify instances where trial counsel failed to take an objection at trial, and look at the impact that failure may have on the argument. Appellate courts may treat the failure as an indication that counsel did not see any error or injustice to that evidence being admitted, or a direction given. Therefore, it is necessary to consider whether objections were taken to any of the evidence at the trial or whether any directions were sought of the judge under the Jury Directions Act 2015.92 Under the Jury Directions Act 2015, counsel must assist the trial judge in discharging his or her duty to determine the matters in issue in the trial and the directions that he or she should give the jury, as well as the content of those directions.93 The judge must give the jury a requested direction unless there are good reasons for not doing so.94 The judge also has an obligation to give a direction that has not been requested, but only if there are substantial and compelling reasons for doing so.95 90 Andelman v The Queen (2013) 38 VR 659; [2013] VSCA 25 at [92]. 91 For cases post-Baini, see Crocker v The Queen [2013] VSCA 318 (considers Baini); Benson v The Queen [2014] VSCA 51 (considers Baini and Andelman) and Bass (a pseudonym) v The Queen [2014] VSCA 350 (considers Baini and Andelman). 92 See also Chapter 6 at [6.530]. 93 Jury Directions Act 2015 s 9. 94 Jury Directions Act 2015 s 14. 95 Jury Directions Act 2015 ss 15 and 16.

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Part 4 of the Jury Directions Act 2015 contains directions in regard to post-offence conduct,96 other misconduct evidence,97 unreliable evidence,98 identification evidence,99 delay and forensic disadvantage,100 and a failure of the defence to give evidence or call a witness.101 Part 5 of the Jury Directions Act 2015 contains directions regarding sexual offences;102 Pt 6, directions regarding family violence;103 and Pt 7 contains general directions.104 The trial judge’s obligations when summing up constitute Pt 8.105 It is important to examine each of the directions sought and given, and assess whether they had an effect on the evidence presented before the jury.106 If, for example, during a trial, counsel sought and was given a direction on delay and significant forensic disadvantage in an historical sexual offences trial and a full explanation with examples was given, then relying upon an argument that there was a miscarriage of justice on this basis is weakened and may not be sustainable. The directions sought and given must be carefully analysed before they are included in any written submissions and oral arguments.

Grounds of appeal against sentence [10.180] Appeals against sentence are dealt with extensively in Chapter 6.107 In this chapter, the law will be referred to in the context of drafting or oral argument. Under CPA s 281(1) and (2) the Court of Appeal must allow an appeal (under CPA s 278) if the appellant satisfies the court that: (a) there is an error in the sentence first imposed; and 96 See Jury Directions Act 2015 Pt 4 Div 1 ss 18 – 24. 97 See Jury Directions Act 2015 Pt 4 Div 2 ss 25 – 30. 98 See Jury Directions Act 2015 Pt 4 Div 3 ss 31, 34. 99 See Jury Directions Act 2015 Pt 4 Div 4 ss 35 – 37. Note that s 73 of the Jury Directions Act 2015 repealed s 116 of the Evidence Act 2008 in regard to Jury directions relating to identification evidence. Therefore, directions contained in ss 35 – 37 of the Jury Directions Act 2015 are the relevant provisions. 100 See Jury Directions Act 2015 Pt 4 Div 5 ss 38 – 40. 101 See Jury Directions Act 2015 Pt 4 Div 6 ss 41 – 44. Note that s 70 of the Jury Directions Act 2015 repealed s 20 of the Evidence Act 2008 in regard to Jury directions relating to the failure of defence to give evidence or call a witness. Therefore, directions contained in ss 41 – 44 of the Jury Directions Act 2015 are the relevant provisions. 102 See Jury Directions Act 2015 Pt 5 Div 1 ss 45 – 54. 103 See Jury Directions Act 2015 Pt 5 Div 1 ss 55 – 60. 104 See Jury Directions Act 2015 Pt 5 Div 1 ss 61 – 64. 105 See Jury Directions Act 2015 Pt 5 Div 1 ss 65 – 67. 106 Note there are other directions contained in the Evidence Act 2008 that have been repealed or amended by virtue of ss 70 – 77 of the Jury Directions Act 2015 which must be considered. 107 See Chapter 6 at [6.610]–[6.1250].

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(b) a different sentence should be imposed. (2) In any other case, the Court of Appeal must dismiss an appeal under section 278.

In DPP v Karazsis,108 the Court of Appeal stated that an “error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge”.109 In McPhee v The Queen,110 the Court of Appeal reformulated the question of whether there is an error in the sentence as “whether the sentence imposed was reasonably open to the sentencing judge”.111 Expressed another way, the question is whether the sentence(s) “fall outside the range of sentences that were reasonably open to the sentencing judge”.112 As stated in Ayol v The Queen,113 “sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown”. The term “error” in the context of a sentence appeal can refer to a jurisdictional error, a failure to apply common law principles in arriving at a sentence, or a failure to consider the statutory requirements such as those set out in the Sentencing Act 1991 (Vic) s 5. It is the failure to correctly apply the common law principles and the failure to consider the statutory requirements that often lead to a complaint that the sentence was manifestly excessive.

Manifest excess and current sentencing practices in Victoria [10.190] Given that “manifest excess” is a common ground of an appeal against sentence, the meaning of this phrase deserves closer analysis. In Ayol v The Queen114 Maxwell P stated: The ground of manifest excess requires consideration of the sentencing range applicable to the case at hand. Determining the range requires an identification of the relevant features going to the seriousness of the offending – and, where relevant, to the antecedents of the offender – and then an identification of current sentencing practice for a case of that character.

108 DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350 at 662 [127] (VR), citing R v Boaza [1999] VSCA 126 [42]. 109 The test for a DPP appeal against sentence is contained in s 289 of the Criminal Procedure Act 2009 (CPA) and that statutory test is the same as in s 281 of the CPA. 110 McPhee v The Queen [2014] VSCA 156. 111 McPhee v The Queen [2014] VSCA 156 at [11]. 112 McPhee v The Queen [2014] VSCA 156 at [14]. 113 Ayol v The Queen [2014] VSCA 151 at [30] citing Clarkson v The Queen (2011) 32 VR 361 at 384 [89]. 114 Ayol v The Queen [2014] VSCA 151 at [31] and [32].

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As Redlich JA has said, and this Court has subsequently endorsed,115 it is current sentencing practices for the relevant category of seriousness of the offence which inform the determination, both by the sentencing judge and by this Court on appeal, of the appropriate range. Almost always, in my experience, that requires the identification of comparable cases, that is to say, cases in which the relevant indicia of seriousness – and, where relevant, comparable antecedents of the offender – are to be found. This is simply a function of the basal requirement of consistency in sentencing.

Maxwell P then stated: As the decision in Hasan v The Queen, showed, occasionally it will be possible to demonstrate, by identification of one or more relevantly comparable cases, that the particular offender has been treated inconsistently and unfairly, that is to say, has been given a heavier sentence than in comparable cases where there is no reasonable basis for differentiating them. In Hasan, that led to what otherwise seemed a reasonable sentence being reduced.116

Given that a sentence must be manifestly excessive and not just arguably excessive, reliance on comparable cases to illustrate the point is required. Often it is impossible to find a case on all fours with a client’s case. However, if counsel is in a position to identify cases that have more aggravating features but a lesser sentence to that imposed on his or her client for the same offence, they may be able to demonstrate that the sentence is in fact manifestly excessive. Caution, however, must be exercised if embarking on this type of exercise, as the court in DPP v Zhuang,117 was critical of counsel for selecting cases “solely by reference to the sentences that were imposed therein. The cases were entirely unhelpful and should not have been cited. They deflected the parties from what should have been their focus: like cases that fell within the present category of seriousness of the offence and which informed current sentencing practice for such a case”.118 When searching for comparable cases it is important to read the case to be relied upon in its entirety. This may seem obvious however, it is remarkable how often cases cited by the applicant are unhelpful or irrelevant and it is clear that the case was chosen simply on what was read in the headnote. The cases cited are important in proving the relevant points with an argument losing traction if, upon closer examination, it becomes clear that the case cited is unhelpful. If a case is clearly unhelpful, the advocate will be criticised when attempting to rely upon their written submissions during the hearing.

115 See Anderson v The Queen (2013) 230 A Crim R 38 at [22]–[23], citing Ashdown v The Queen (2011) 219 A Crim R 454 at 517 [174], 523 [191]. 116 Ayol v The Queen [2014] VSCA 151 at [33], also see Hasan v The Queen (2010) 31 VR 28 (“Hasan”). 117 DPP v Zhuang [2015] VSCA 96. 118 DPP v Zhuang [2015] VSCA 96 at [35].

502

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The court in DPP v Zhuang,119 provides a helpful insight into what is involved in the exercise of a judicial discretion in sentencing, how the selection of other cases may be helpful to the court, observations concerning the use of “like” or “comparable cases” and the task of assessing a sentence on appeal and whether the sentence imposed is manifestly excessive or inadequate. This insight is invaluable in drafting an appeal on this ground.

Statutory sentencing guidelines [10.200] It is important to be familiar with s 5(1) of the Sentencing Act 1991, as this section details the only purposes for which sentences are to be imposed. The considerations detailed in this section form the basis of each set of sentencing remarks made by the judge upon sentencing an offender. Therefore, the treatment of these considerations individually and collectively will be the basis of any submissions in an appeal against sentence. These considerations are well known amongst lawyers practising in criminal law and will not be dealt with extensively here. The only purposes for which sentences are to be imposed are: a. just punishment; b. deterrence – specific to the offender or generally to deter other persons from committing the same or similar offences; c. rehabilitation;120 d. denunciation of the court of the type of conduct engaged in by the offender; e. protection of the community from the offender; or f. a combination of the above. The Sentencing Act 1991 (Vic) s 5(2) also states: In sentencing an offender the court must also have regard to – (a) the maximum penalty prescribed for the offence; and (ab) the baseline sentence121 for the offence; and (b) current sentencing practices;122 and (c) the nature and gravity of the offence; and 119 DPP v Zhuang [2015] VSCA 96 at [30]–[34]. 120 See [10.220] paragraph 3. 121 The baseline sentencing provisions of the Sentencing Act 1991 are no longer applicable given the decision in DPP v Walters (a pseudonym) [2015] VSCA 303 at [9]. The Court of Appeal found the baseline provisions incapable of being given practical operation. Although the baseline provisions are still in the Sentencing Act 1991, they cannot be applied, and although the judgment does not address whether s 11A [Sentencing Act 1991] (governing non-parole periods for baseline sentences) applies, it is impractical to do so and sentencing judges are dissuaded from doing so. 122 There is a need for sentencing judges to have regard to the maximum penalty provided by Parliament when considering current sentencing practices. The ground of manifest excess also needs to be considered in this context: see DPP v CPD (2009) 22 VR 533; DPP v Arney [2007] VSCA 126.

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(d) the offender’s culpability and degree of responsibility for the offence; and (daa) the impact of the offence on any victim of the offence; and (db) any injury, loss or damage resulting directly from the offence, and (e) whether the offender pleaded guilty123 and the stage of the proceedings at which he did so or indicated an intention to do so; and (f) the offender’s previous character;124 and (g) the presence of any aggravating or mitigating factor concerning the offender or any other relevant circumstances.

The Sentencing Act 1991 (Vic) s 5(3) – (7) attempts to ensure that the offender is given the least punitive sentence available, having balanced all the considerations and in order to meet the sentencing purpose required in each particular case.

Plea transcript and sentencing remarks [10.210] When drafting submissions for a sentence appeal it is necessary to be as familiar as possible with the plea transcript and sentencing remarks. The main complaint in a sentence appeal is that, in weighing all of the considerations, the court placed too much emphasis on those considerations that reflect badly upon the offender (such as the nature and gravity of the offending and the impact upon the complainant), and did not place enough emphasis on those considerations that reflected favourably upon or assist the offender or reduced his or her culpability (such as good work ethic, lack of prior convictions or a psychological or psychiatric illness).

123 A plea of guilty is taken into account for a variety of reasons and it is “ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of that mitigation may vary depending on the circumstances of the case. It is also relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence”: see Siganto v The Queen (1998) 194 CLR 656 at 663–664 [22]; most recently followed in Phillips v The Queen (2012) 37 VR 594 at [37]. 124 Prior convictions can have an impact upon penalty in a number of ways. In R v O’Brien & Gloster [1997] 2 VR 714 at 718, Charles JA stated: “It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender’s moral culpability, his prospects of rehabilitation, his dangerous propensity and the community’s need for protection and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.” Evidence of good character, where it is available, is an important matter and the failure to lead this evidence in some instances can result in a substantial miscarriage of justice: see Sharma v The Queen [2011] VSCA 356; De Silva v The Queen (2013) 236 A Crim R 214; [2013] VSCA 339.

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Common law principles [10.220] The following common law principles feature strongly in the sentencing discretion exercised under s 5 of the Sentencing Act 1991:125 1. Proportionality – the sentence must be proportionate to the seriousness of the offence and the moral culpability of the offender.126 2. Totality – the sentence (when sentencing for a number of offences) must ensure that the total cumulation appropriately reflects the total criminality involved.127 3. The avoidance of a crushing sentence – this principle offers hope to the offender that he or she may still be able to contribute to society after his or her release from prison. It also confirms that rehabilitation is an important aspect of sentencing. 4. Parity of sentencing – where there are co-accused involved in the offending, the sentences should reflect a level of equality between the offenders to reflect the same level of culpability. If, however, each had significantly different roles or their personal circumstances were significantly different, then there ought to be some adjustment to reflect these differences. Parity requires that any difference in sentencing is transparent and proportional. 5. Double punishment – where there are multiple offences resulting from the same offending care must be taken by the sentencing judge to avoid punishing the offender twice for the same offending. 125 These principles are also dealt with in Chapter 6 at [6.760]–[6.960] but they are important to include here in short form as they may form the basis of written submissions dealt with later in this chapter: see [10.240]. 126 In cases where there are a large number of counts, Redlich JA’s remarks in Hoy v The Queen [2012] VSCA 49 at [17]–[18] must be considered. His Honour states: “When a sentencing judge is required to impose terms of imprisonment on a large number of counts, it has often been recognised that the sentencing judge may, within limits, adopt a ‘broad-brush’ approach to the fixing of sentence. For example, such an approach may be appropriate where there was an ongoing fraudulent course of conduct, a single fraudulent or common enterprise or where the criminal behaviour on counts was of a similar and repetitive nature. There is much authority to the effect that sentences imposed in such circumstances need only be roughly proportional to the gravity of the offences and the amount taken. This is not the first time that it has been necessary to state that structural objections to the sentences imposed in such cases is to be discouraged unless they reveal error in the instinctive synthesis. Where a judge is entitled to adopt a broad-brush approach, disconformity between sentences on particular counts will not usually provide a sufficient basis to impugn the instinctive synthesis.” See also Day v The Queen [2011] VSCA 243; R v Fletcher [2002] VSCA 40; R v Ash [2005] VSCA 43 at [23]–[25]. 127 Sentencing is not a mere mathematical exercise. Whilst the individual sentences may be appropriate for each charge, it is not simply a matter of adding them all together as this may end in a ridiculous result given the nature of the offending and the culpability of the offender. “The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences … The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’”: Mill v The Queen (1988) 166 CLR 59 at 62.

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6. Mental state of the offender – the offender’s mental state may be relevant to the offender’s culpability and degree of responsibility for the offending.128 It also impacts upon the offender’s ability to rehabilitate.129 Knowing and understanding the considerations in ss 5 and 7 of the Sentencing Act 1991, the common law principles applicable, the plea transcript and sentencing remarks, and any comparable cases, are required before it is possible to make an assessment as to whether the sentence imposed individually or cumulatively was manifestly excessive.

House v The King [10.230] The case of House v The King130 is important when assessing whether or not a sentencing judge has erred in exercising his or her sentencing discretion. Appeals against sentence are based upon the exercise of a judicial discretion by the original sentencer. The manner in which an appeal against the exercise of that discretion should be determined is set out in House v The King: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 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 and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of the first instance. 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.131 128 Under s 5(2)(d) of the Sentencing Act 1991, the judge must have regard to the offender’s culpability and degree of responsibility. 129 This is a relevant consideration under s 5(1)(c) of the Sentencing Act 1991. In R v Verdins (2007) 16 VR 269 at [26] and [32] the Court of Appeal examined the “ways in which impaired mental functioning has been held … to be capable of reducing moral culpability”. The recent case of DPP v O’Neill [2015] VSCA 325 at [35], [71], [74]–[78], [80]–[85] considered the scope of the principles enunciated in Verdins and concluded that they are only enlivened where the offender suffers from impairment of mental functioning. They do not apply to personality disorders. In O’Neill the Court of Appeal considered the principles in Verdins in detail and summarised the scope and limitations of those principles. The case of Wright v The Queen [2015] VSCA 333 was handed down eight days after the decision in O’Neill and also considers the relevance of mental illness upon sentencing. 130 House v The King (1936) 55 CLR 499; [1936] HCA 40. See Chapter 6 at [6.640]. 131 House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505 (CLR).

506

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In other words: i. an error must be demonstrated; ii. it is not enough that the appellate judges would have imposed a different sentence; iii. an error may be demonstrated by showing the sentencing judge acted upon a wrong principle, mistook the facts, took into account irrelevant matters or failed to take into account relevant matters; and iv. in some cases, if the result is unreasonable or plainly unjust the appellate court may conclude there was an error, even if it is not clear how an error occurred.

PART 3: DRAFTING, ANALYSIS, EDITING AND PERSUASION Consolidating information when drafting grounds of appeal and the written case [10.240] It is necessary to be scrupulous when deciding upon the grounds of an appeal. There is no point in listing numerous grounds if there are only one or two that have a realistic prospect of success. The challenge in drafting appeal grounds is not to succumb to a fear that if every point is not made and the appeal is unsuccessful then the drafter has failed in their task. While listing every conceivable ground may seem the safe course to take, it may distract the court from the best arguments as they are submerged in a quagmire of other weak arguments. Having settled on the grounds that have merit, the difficult task is in drafting the written case. Effective drafting is more than just listing the grounds and citing each piece of evidence in support. It is where form and substance intertwine so that the story is told whilst the legal points are being made. Particularly insightful are the following words of Hayne J (as he then was), in a paper delivered to the Victorian Bar on written advocacy: The principal task of an advocate is to persuade. The principal purpose of written advocacy is, therefore, to persuade. If the author is to persuade, the written submissions must be useful to the audience to whom they are directed – the judges who are to decide the case. If the submissions are to be useful to the judges, the author must convey the requisite information clearly, concisely, accurately and comprehensively.132

His Honour went on to say: [T]he utility of written argument is diminished, even destroyed, if it is not clear, concise, accurate and comprehensive. If it is not clear, when do you propose to clarify the point? You cannot depend upon the court not noticing obfuscation. If it is not concise, why would you expect the reader’s attention to remain focused through the diffusion? If it is not accurate, why would the 132 Hon Justice K M Hayne AC, “Written Advocacy” (Paper delivered as part of the continuing legal education program of the Victorian Bar, 5 and 26 March 2007) p 4.

[10.260]

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judge not be minded to put your document aside in favour of your opponent’s? If it is not comprehensive, when do you propose to fill in the gaps?133

When put in such sharp terms, the importance of clarity, brevity and focus in written submissions is immediately understood. The written submissions leave the court with their first impression of both the case and the author of the written submissions. Therefore, the clearer the grounds, arguments in support, and conclusions are stated, the easier the advocate’s oral arguments will be. This also gives the appellate judge the opportunity to formulate questions to test the advocate’s argument before he or she presides over the matter. The advocate will then be able to persuade the court by addressing the court’s concerns.

Structure of appeal grounds and written case [10.250] In terms of structure, the Victorian Supreme Court has helpfully prepared a set of minimum requirements to assist in formulating and drafting the grounds of appeal and the written case.134 These requirements set by the court make drafting easier in terms of formal structure. They provide uniformity in the way the documentation is produced and make the documents easier to read. The structure has been dealt with in Chapter 6 and will not be repeated here.135 The written case can easily be divided into four parts: Part A and B contain the particulars of conviction and or sentence, relevant statutory provisions and maximum penalties;136 Part C includes the summary of relevant facts; and Part D contains the grounds of appeal. Parts A and B are self-explanatory. Part C must be succinct – the more space given to summarising the facts, the less space there is to actually particularise the appeal grounds in Part D. The summary should be clear and should contain the facts that will be relevant to the grounds of appeal. Part C is where most difficulties lie.

Be clear about the grounds to be relied upon [10.260] The simplest way to approach Part D is to commence drafting only after the grounds to be relied upon are clear. The time for contemplation is over, a clear decision must be made otherwise the result will be submissions that are confusing. 133 Hon Justice K M Hayne AC, “Written Advocacy” (Paper delivered as part of the continuing legal education program of the Victorian Bar, 5 and 26 March 2007) p 5. 134 See Practice Direction No 2 of 2011 s 4. 135 See Chapter 6 at [6.380] for conviction appeals and at [6.990] for sentence appeals. Practice Direction No 2 of 2011 does not refer to “Parts” of the written case, but for the purposes of this chapter, Parts A, B, C and D of the written case are referred to for greater clarity. 136 This section is based upon Annexure 1 of Practice Direction No 2 of 2011.

508

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[10.270]

Ensure that the information detailed within each ground actually relates specifically to that ground. The information must be presented logically and in a way that is easy to read.

Identify and analyse the issue [10.270] Once the ground is identified, it is important to tell the court at the outset and in plain language what the ground is about and what the issues are. As stated, this should be done in a logical sequence. For example: Ground One: The failure by counsel to adduce good character evidence during the trial led to a substantial miscarriage of justice. In point form, the logical sequence would be: • The applicant was a man of previous good character with no prior convictions. • No evidence was adduced during the trial as to the applicant’s good character and lack of prior convictions. • Trial counsel admits (in an affidavit) that it was a forensic error not to have adduced evidence of the applicant’s good character and lack of criminal history. • There was no forensic advantage to be obtained by not adducing evidence of good character. • The applicant was therefore deprived of evidence of good character and a direction of law to the jury on good character. • It was a significant disadvantage in a case where the evidence was essentially a word-against-word case. • The failure to elicit good character evidence affected the outcome of the trial in that it deprived the applicant of a real chance of an acquittal. These issues should then be analysed. If the argument is simple, the issue and its analysis can occur simultaneously. If the argument is complex, it may be appropriate to separate them out and develop them individually.

Write an ending [10.280] The ending should simply be a concluding paragraph that ensures the issues and analysis are tied together and that the conclusion is clear. It is not an opportunity to repeat an advocate’s analysis of the ground.

Drafting errors [10.290] Repeating a large block of quotations from the transcript or from the cases cited should be avoided. A block quotation should only be included if it is necessary – for example, if it is from the judge’s charge and it is this part of the charge that is in issue. Long sentences should also be avoided. Most writers do not know how to draft good long sentences. It is better to write short sentences which avoid

[10.300]

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confusion and allow the reader to digest the writer’s submissions. Sentences that cannot easily be spoken should also be avoided. Advocates should therefore read all or part of their written submissions out loud if in doubt. When possible, the names of the parties should be used rather than their role in the case (for example, complainant, accused, co-accused, witness) as this avoids confusion and is easier to read and digest. Punctuation, spelling and grammar are important. Errors in punctuation, spelling and grammar can make it difficult to read submissions and the reader will lose interest. There are many good texts that can assist in this area of writing.137 Revision is necessary to obtain clarity. The only way to truly be clear and concise is to revise written submissions several times and remove every word that is unnecessary. Brutal editing is essential in order to be concise and clear. Once the submissions are as polished as possible, it is a good idea to put them to one side (if there is time) and come back to them a day or two later for a final revision. Overstating the case will only lead to problems in court. Some submissions will look good on paper but have no real substance once they are tested. This is usually because the case has been overstated. It is important to ensure that citations are correct. Often counsel drafting the written case or response will be content to google Austlii and use the medium neutral citation without checking to see if the case they are referring to is contained in an authorised report. It is imperative to check whether the case cited has been reported in an authorised report. The court will be unimpressed by the use of medium neutral citations in place of an authorised report and will be left with a negative impression.

Preparing oral submissions based on the written case [10.300] Between the time of filing the written case and the hearing, several months may have lapsed. It is important not to simply rely upon a previous reading of the brief. It must be read again to ensure familiarity with all aspects of the transcript in preparation for the questions that will inevitably be asked by the court. Too many advocates have the attitude that the court has already made up its mind before they preside, and so any assistance counsel may give is limited. Of course, the court will have read the appeal papers and will have formed a preliminary view, but the court will often want to test counsel’s submissions, or explore a policy consideration that arises from 137 See, eg, B A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (OUP, New York, 2014); A Scalia and B A Garner, Making Your Case: The Art of Persuading Judges (Thomson West, St Paul, 2008); J C Raymond, Writing for the Court (Carswell, Canada, 2010); W Strunk and E B White, The Elements of Style (4th ed, Pearson Education, New Jersey, 1999).

510

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[10.310]

those submissions. Or the court may want to confirm some of the material they have read, or simply discuss the options available if counsel’s submissions are accepted. There may also have been a case decided (between the time the current written case was filed and the hearing date of the appeal) that may have implications for the case in hand and the court may want to discuss these implications with counsel. As already stated (see [10.20]), presenting oral submissions in appellate advocacy is not an opportunity to simply read out the written case. So how does the advocate prepare to meet the concerns of the court? This is where some decisions need to be made regarding the approach to be taken. In the event that the advocate is allowed to commence without any direction from the court, they will need to be clear in their own mind as to what aspects of their written submissions they want to develop. They may wish to focus on one ground alone as that is the ground they have decided has the best prospects for success (relying on their written submissions for the remaining grounds), or they may decide to briefly highlight some aspects of each ground. Whatever the decision, there must be a plan. In the event that the court seeks to direct the advocate, he or she must listen to what the court wants them to address. Stating “I’ll get to that in due course” is not appropriate. In preparing their oral submissions, advocates should make notes that will assist in answering any questions that may be asked. They should make a clear note as to what aspect of the decision, trial or plea they are criticising, why they are saying the decision is wrong and what the consequences are of it being wrong. It is a good idea to make dot point notes of the most important aspects of the transcript. Often counsel can anticipate where they may be asked to make a concession which is by its nature contrary to their argument. In this case they must be prepared to make the concession where it is necessary. However, where counsel is not prepared to make the concession, they should detail how their position is different from the situation being put to them by the court.

Answering questions posed by the court [10.310] It is important for advocates to choose their words carefully when answering a question from the court. In order to choose how to answer the anticipated question advocates must consider all possible questions and then consider what it is they are trying to achieve in answering the question. For example, in the case of Jason Picolotto v The Queen,138 the first ground alleged was that “there was a miscarriage of justice caused by undue 138 Jason Picolotto v The Queen [2015] VSCA 143.

[10.310]

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interference and involvement by the trial judge such as to constitute a departure from the due and orderly process of a fair trial”.139 The transcript from the trial contained comments made by the trial judge to defence counsel regarding the way defence counsel was presenting his client’s case. The appellant asserted that the comments were far too personal and at times derogatory. In that appeal the court considered that: the critical question under ground 1 is whether the exchanges between the judge and the applicant’s counsel and the other comments made by the trial judge in the presence of the jury caused the atmosphere of the trial to become tainted in a manner adverse to the applicant so that, by the time the jury retired to consider its verdict, it could not be asserted that there had been a fair trial.140

Using this example, the question the court is likely to ask the respondent (the Crown), where the respondent is attempting to have the conviction upheld, is in regard to the appropriateness of the judge’s personal comments. Questions such as these involve markers of behaviour that the court wants to encourage or discourage, or involve legal principles or policies that the court wants to address. It is obvious that the court would not want the respondent to condone personal comments made by the trial judge to defence counsel. Therefore, in this scenario, counsel would need to consider how to argue the Crown’s position (that the conviction should be upheld) without appearing to support the trial judge’s personal comments in regard to defence counsel. A possible answer is that although the comments were inappropriate and trial judges should refrain from making highly personal and negative comments about trial counsel, in this case, the most concerning comments were made in the absence of the jury. As a result, the trial was not “tainted” and so was ultimately fair. To that end the respondent’s submission will focus only upon the comments made in front of the jury and (in light of those comments) the position the jury was in when it retired to consider its verdict.141 Finally, as an officer of the court an advocate must not mislead the court, which means that if there is a case that is contrary to their view, it must be brought to the court’s attention and their assistance will be in distinguishing that case from their argument. Advocacy is also about reputation. It is imperative that an advocate’s reputation remain intact. 139 Jason Picolotto v The Queen [2015] VSCA 143 at [1]. 140 Jason Picolotto v The Queen [2015] VSCA 143 at [31]. 141 Note that the court in Jason Picolotto v The Queen [2015] VSCA 143 at [53], ultimately concluded in regard to this ground that, “It was inevitable that the atmosphere of the trial was tainted in a manner so adverse to the applicant that, by the time the jury retired to consider its verdict, it could not be asserted that there had been a fair trial.” The example in [10.310] is simply to demonstrate how the question from the court might be answered.

512

Criminal Appeals and Reviews in Victoria

[10.320]

Oral argument on an interlocutory appeal [10.320] Chapter 5 deals with the right to appeal from an interlocutory decision and the procedure required to achieve this as set out in ss 295 – 301 of the CPA. The statutory requirements and procedures will not be dealt with in this chapter. The “Notice of Application for Leave to Appeal” and accompanying “Applicant’s Summary of Contentions”, which contains the “Application for Review of Refusal of Judge to Certify Application” (if applicable) must contain all that the applicant seeks to rely upon.142 These documents are meant to be exhaustive, to the point and form the basis of an advocate’s oral arguments at an interlocutory hearing. The court is not interested in lengthy explanations by counsel at a hearing and will very quickly indicate its view regarding the merits of the application. It is important to remember that an appeal against an interlocutory decision is to be determined on the evidence, if any, or arguments raised in the proceeding to which the appeal relates, unless the Court of Appeal gives leave to adduce additional evidence.143 If counsel includes arguments or evidence not relied upon during the trial or pre-trial, the court will be quick to point that out and may be very critical of counsel for doing so. An advocate’s role on an interlocutory appeal is limited as the Court of Appeal is serious about only having those matters before it that strictly adhere to the statutory rules and tests that are applicable to interlocutory appeals. If the court is of the view that the application is misconceived or inappropriate, there will be very little an advocate can say to change that. Therefore, the information contained in the application and summary of contentions must be well thought out, precise, exhaustive and address the various tests and requirements.

PART 4: APPEALS TO THE HIGH COURT Appearing in the High Court of Australia [10.330] All suggestions about advocacy in the preceding paragraphs in relation to applications and hearings in the Court of Appeal also apply to any appearance in the High Court of Australia (“the High Court”). In other words, the wants and needs of the court; knowledge of the rules; care in drafting grounds of appeal (or special leave applications); being clear about the basis of submissions; identifying and analysing the issues; good drafting; preparing oral submissions based on written submissions, all apply equally to appearances in the High Court. Since a more extensive analysis has already been undertaken in Chapter 9, the statutory and procedural requirements will only be 142 Also see Chapter 5 at [5.290]–[5.520]. 143 CPA s 300(1).

[10.330]

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touched on briefly in this chapter, which predominantly deals with oral argument in the High Court.144 In brief, there is no statutory appeal as of right in criminal matters to the High Court. The High Court is not a court of criminal appeal and therefore all criminal appeals to the High Court require a grant of special leave. Section 35A of the Judiciary Act 1903 (Cth) sets out the criteria the High Court must apply when considering whether to grant special leave to appeal. In short, in deciding whether to grant an application for special leave, the High Court must have regard to: (a) whether the application involves a question of law: (i) that is of public importance, whether because of its general application or otherwise; or (ii) as the final appellate court, it is required to resolve differences of opinion between different courts or within the one court as to the state of the law; and (b) whether the interests of the administration of justice, either generally or in the particular case, require the High Court to consider the judgment to which the application relates. In Liberato v The Queen,145 a majority of the High Court said of its function that: It has been repeatedly affirmed by this court that it is not a court of criminal appeal and that it will not grant special leave in criminal cases unless some point of general importance is involved, which, if wrongly decided, might seriously interfere with the administration of criminal justice … It would not be in accordance with that practice to grant special leave to appeal in this case where no question of law is involved and where this court is merely being asked to substitute for the view taken by the Court of Criminal Appeal a different view of the evidence and of the effect of the summing up.146

Given the High Court is not a court of criminal appeal, it has no power to receive fresh evidence147 and cannot hear an appeal against an acquittal as a result of a jury verdict, even if from a directed acquittal.148 The court can, however, hear an appeal from a decision of the Court of Criminal 144 In mid 2016, the High Court introduced procedural changes to the filing and determining of special leave applications. In represented applications, a Panel of Justices will determine in the first instance whether an oral hearing is warranted. If the Panel considers that no oral hearing is required, the application will be determine on the papers. If an oral hearing is required it will be listed for hearing. The High Court Amendment (2016 Measures No 1) Rules 2016 (signed by the High Court Justices on 7 June 2016) amend Pt 41 and Pt 44 of the High Court Rules and also introduced a new Form 23 (Application for leave or special leave to appeal) and Form 23A (Response to application for leave or special leave). A new r 44.08.2 is also introduced prescribing a new form (Form 27F) of the outline of oral submissions: see Explanatory Statement dated 7 June 2016, and the list of new forms on the High Court website under “Forms”. 145 Liberato v The Queen (1985) 159 CLR 507. 146 Liberato v The Queen (1985) 159 CLR 507 at 509 per Mason ACJ, Wilson and Dawson JJ. See also Mickelberg v The Queen (1989) 167 CLR 259. 147 See Mickelberg v The Queen (1989) 167 CLR 259. 148 Jones v The Queen (1989) 166 CLR 409.

514

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[10.330]

Appeal directly entering an acquittal.149 Further, it is unusual for a person convicted of an offence to be given special leave to appeal against sentence unless a question of law or principle of general importance is involved.150 It is only in exceptional circumstances that special leave will be granted to the Crown on an application for special leave against a sentence.151 The case of R v Hillier,152 illustrates the differences between a Criminal Court of Appeal and the High Court. In Hillier, the High Court stated: It has been said that this Court will grant special leave to the prosecution to appeal only in very exceptional circumstances.153 While it is clear that the Court has several times said it is, and should be, reluctant to grant special leave to the prosecution, it is not necessary to consider the exact content of the principle that underpins that reluctance. Where, as here, the verdict of a jury has been quashed by an intermediate court of appeal, and it is demonstrated, as here, that that court reached its order by a path that was not in accordance with proper principle, it is in the interests of the administration of justice, both generally and in this particular case, that the error be corrected. Because the error that has been made will require that the whole case be reviewed to decide whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”,154 the interests of justice will best be served by granting special leave to appeal, treating the appeal as instituted and heard instanter and allowed, setting aside the order of the Court of Appeal, and remitting the matter to the Court of Appeal for rehearing. Upon a rehearing by a differently constituted Court of Appeal, it will be open to the parties to canvass the whole of the evidence at trial to an extent greater than reasonably possible in this Court, and to do that in light of this Court’s identification of the error made by the majority of the Court of Appeal in the judgment which gives rise to this appeal.155

Once the High Court detected the error in the decision of the Court of Appeal and special leave was granted and the appeal heard, the High Court remitted the matter back to the Court of Appeal. It was remitted back for a rehearing so that the whole of the evidence could be canvassed in the intermediate court, which is the Criminal Court of Appeal. The High Court was simply there to identify the error that (in the interest of justice) required correcting.

149 R v Glennon (1992) 173 CLR 592. 150 Bugmy v The Queen (1990) 169 CLR 525. 151 R v Many (1991) 65 ALJR 259. 152 R v Hillier (2007) 228 CLR 618. 153 R v Wilkes (1948) 77 CLR 511 at 516–517; R v Lee (1950) 82 CLR 133 at 138; R v Benz (1989) 168 CLR 110 at 111, 119–120, 131–132, 146. 154 M v The Queen (1994) 181 CLR 487 at 494–495. 155 R v Hillier (2007) 228 CLR 618 at [53]–[55].

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Similarly, in the case of Baini v The Queen,156 the concluding remarks in the joint judgment of French CJ and Hayne, Crennan, Keifel and Bell AJJ, illustrates the differences between a Criminal Court of Appeal and the High Court. The Court concluded and ordered the following: Whether, having regard to the whole of the evidence at trial, the Court of Appeal could conclude that the verdicts the jury returned in respect of the Rifat counts were inevitable (because the jury could not have entertained a reasonable doubt) is a question which has not been considered by that Court. It cannot be decided by this Court because it does not have the full record of the trial available of it. Because the Court of Appeal did not examine whether the appellant’s convictions on the Rifat counts were inevitable, the matter should be remitted to the Court of Appeal for it to consider again whether there was “a substantial miscarriage of justice” in respect of the Rifat counts. The appeal to this Court should be allowed and the matter remitted to the Court of Appeal for its further consideration.157

Again, the High Court remitted the case back to the Court of Criminal Appeal for full consideration and determination. Both cases illustrate the distinction between the functions of the Court of Appeal and the High Court.158

Oral argument in the High Court [10.340] As already stated, the matters discussed in appellate advocacy thus far are also applicable to appearances in the High Court. There are, however, different rules that are applicable to appearances in the High Court and regard must be had to those rules, as they affect the time allotted for oral argument.159 Rule 41.11.3 of the High Court Rules 2004 (Cth) provides: The time allocated to the parties for oral argument on the hearing of an application shall be as the Court orders or, in default of any order, shall be: (a) applicant – 20 minutes; (b) respondent – 20 minutes; and (c) applicant in reply – 5 minutes.

An “application” means “an application for leave or special leave to appeal to the Court”.160 An “applicant” or “respondent” means the person making an application or responding to an application in an application for leave or special leave to appeal.161 156 Baini v The Queen [2012] 246 CLR 469. 157 Baini v The Queen [2012] 246 CLR 469; [2012] HCA 59 at [40]. 158 For a detailed treatment regarding the jurisdiction of the High Court, the different types of procedures and applications, and the various types of appeals, see Chapter 9. 159 That is, when appearing in an application for leave or special leave to appeal: see High Court Rules 2004 (Cth) r 41.11. 160 High Court Rules 2004 (Cth) Ch 4 Pt 40 r 40.01 (Interpretation). 161 High Court Rules 2004 (Cth) Chr 4 Pt 40 r 40.01 (Interpretation).

516

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In order to give effect to r 41.11 of the High Court Rules, a panel housing three lights is situated directly in front of counsel on the podium. This panel contains a green light, an orange/yellow light and a red light. As soon as the applicant stands up to commence oral argument, the green light illuminates and stays on. Fifteen minutes later, the orange light illuminates to indicate that the applicant only has five minutes left. Five minutes later, the red light illuminates and the court will shortly thereafter stop counsel from continuing. The respondent then has 20 minutes in which to make submissions and the lights operate in the same way during those submissions. Finally, there is a five-minute reply by the applicant. These time restrictions are only relaxed by the presiding judge if it is considered more time is needed to develop or complete an argument that the court is interested in. The court lists many special leave applications at the one time and cannot allow any case to take more time than is allotted. Twenty minutes passes very quickly when making oral argument so it is important to be aware of the time. It is imperative to get to the heart of an argument quickly. Under no circumstances (as has occurred recently) should the lights on the panel be covered with documents. This means that counsel will be oblivious to the passing of time and inevitably time will run out.

PART 5: CONCLUDING COMMENTS Advocacy and wellbeing [10.350] In conclusion, a short word on dealing with negative responses from the appellate court and on managing anxiety. Managing how to approach any negative responses and the daily anxiety that is part and parcel of advocacy in the superior courts are important to an advocate’s wellbeing.

Dealing with negative responses from the court [10.360] Appellate advocacy is more than just being a skilful wordsmith. The advocate also needs to watch the judges being addressed in order to pick up any helpful cues. Being married to notes and unable to observe the individual responses of those being addressed will result in the advocate ignoring those he or she is trying to convince. Holding the attention of three or more members of the court is difficult, especially as they may each have different preferences. Some like statistics in sentencing, others prefer policy considerations, and some will like comparable cases. If the advocate is buried in books and preoccupied with notes, non-verbal signs will be missed. Being on the wrong end of an argument can make for a very uncomfortable appearance. Multiple questions can sound like rapid gunfire coming from all directions. If one member of the court questions

[10.370]

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and strongly challenges the advocate’s argument, the advocate must remain courteous. If all else fails with that particular judge, focus on engaging the other members of the court. Clashing with the court is counterproductive and can only hurt the argument and potentially the appellant/applicant. Appearing in the appellate jurisdiction is hard work and more often than not when the advocate leaves the court, that negative internal voice will start criticising the performance. From time to time counsel will objectively be able to say that they have improved. On rare occasions, it is possible to have the most extraordinary experience where everything comes together and the advocate may feel that they have moved into the next level of advocacy they have been striving for. But the unfortunate reality is that appearances in the appellate court are uncomfortable and very hard work. This is simply a reflection of the fact that it is not an easy jurisdiction to appear in and requires a lot of skill, focus, persistence, constructive self-reflection on performance and hard work. Being an appellate court advocate is a little like being a fighter pilot – it is necessary to get sufficient flying hours up in order to truly feel confident in court. The more the advocate appears, the better their advocacy will be, but only if they are constantly challenging and reminding themselves of what they are attempting to achieve at each appearance. There is nothing run-of-the-mill about appearing in the Court of Appeal – each appearance is different as each case is different.

Managing anxiety [10.370] The final word on advocacy is about managing anxiety. Very few appellate advocates walk into court totally unaffected by the uncertainty of precisely what they will be asked and what the court’s view may be. Some advocates are able to manage their feelings of anxiety relatively simply, others worry themselves to excess. Feeling anxious can be helpful as it may make the advocate more alert and encourage them to problem-solve. Excessive worry, however, can lead to an advocate being overtired and unproductive. It is important, therefore, to manage anxiety so that it can be used for positive gains rather than negative results.162

162 For a helpful article on managing stress and anxiety, see S Edelman, “What’s the use of Worrying? Strategies for Breaking the Worry Habit” in G Blashki and H Sykes (eds), Life Surfing, Life Dancing (Future leaders, Albert Park, Vic, 2013): http:// www.futureleaders.com.au.

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Alberta Law Reform Commission, Criminal Appeals Procedures: Queens Bench and Court of Appeal, Final Report No 101 (2012). Auld R E, Review of the Criminal Courts of England and Wales, Report (2001). Australian Human Rights Commission, Submission to the Legislative Review Committee of South Australia (25 November 2011). Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, ALRC 92 (2001). Beasley M J, “Judgment Writing in Final and Intermediate Courts of Appeal” (Paper, 20th Anniversary of the Victorian Court of Appeal, 20 August 2015). Caruso D and Crawford N, “The Executive Institution of Mercy in Australia: Case and Model for Reform” (2014) 37(1) UNSWLJ 312. Charles S, “The First Decade of the Victorian Court of Appeal” in Corns C and Urbas G (eds), Criminal Appeals 1907-2007: Issues and Perspectives, Law in Context Special Issue, Vol 26(1) (Federation Press, Sydney, 2008). Commonwealth Office of Director of Public Prosecutions, Guidelines and Directions Manual (2014). Corns C, Public Prosecutions in Australia: Law, Policy and Practice (Thomson Reuters, Sydney, 2014). Corns C, “The Discretion of a Court to Order a New Trial or a Verdict of Acquittal” (2006) 30 Crim LJ 343. . Doogue B, “The Appeal of Swapping the Rolls” (2011) 85(7) Law Inst J 56 Edelman S, “What’s the Use of Worrying? Strategies for Breaking the Worry Habit” in Life Surfing, Life Dancing, Future Leaders (2013): http://www.futureleaders.com.au. Edney R, “Interlocutory Appeals in Victoria: Existing Jurisprudence and Likely Future Trends” (Foleys List, Victorian Bar, 2014). Edney R and Bagaric M, Australian Sentencing: Principles and Practices (Cambridge University Press, Cambridge, 2007). Evershed R, “The History of the Court of Appeal” (1951) 25 ALJ 386.

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Fox R, Victorian Criminal Procedure: State and Federal Law (13th ed, Monash Law Book Co-operative Ltd, Clayton Vic, 2010). Freckelton I (ed), Criminal Law, Investigation and Procedure in Victoria (Thomson Reuters, subscription service). Freiberg A, Fox and Frieberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, Sydney, 2014). Freiberg A and Krasnostein S, “Manifest Error: Grounds for Review” (2012) 36 Aust Bar Rev 54. Freiberg A and Sallmann P, “Courts of Appeal and Sentencing: Principles, Policy and Politics” (2008) 26 Law in Context 43. Gans J, Henning T, Hunter J and Warner K, Criminal Process and Human Rights (Federation Press, Sydney, 2011). Gardner B and Priest P, “An Appealing Procedure” (2009) 83 Law Inst J 32. Garner B A, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, Oxford University Press, New York and Oxford, 2014). Hamer D, “Wrongful Conviction, Appeals and the Finality Principle: The Need for a Criminal Cases Review Commission” (2014) 37(1) UNSWLJ 270. Hampel G, Gurvich D and Braun S, Bail Law in Victoria (2nd ed, Federation Press, Sydney, 2015). Harmonisation of Criminal Appeals Working Group of the Standing Committee of Attorneys-General, Harmonisation of Criminal Appeals Legislation, Discussion Paper (2010). Hayne K M, “Written Advocacy” (Paper delivered as part of Continuing Education of Victorian Bar, 2007). International Consortium for Court Excellence, International Framework for Court Excellence (2012). Judicial College of Victoria, Victorian Criminal Procedure Manual (online). Judicial College of Victoria, Human Rights Bench Book (online). Judicial College of Victoria, Sentencing Manual (online). Kirby M, “Why has the High Court become More Involved in Criminal Appeals?” (2002) 23 Australian Bar News 4. Kirby M, “The Mysterious Word “Sentences” in s 73 of the Constitution” (2002) 76 Australian Bar News 4. Kirby M, “Maximising Special Leave Performance in the High Court” (2007) 30(3) UNSWLJ 731.

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Kirby M, “Judicial Supersession: The Controversial Establishment of the New South Wales Court of Appeal” (2008) 30 Syd LR 177. Kirby M, “Permanent Appellate Courts – the New South Wales Court of Appeal Twenty Years On” (2008) 61 ALJ 391. Kirby M, “Permanent Appellate Courts – The Debate Continues” (1988) 4 Aust Bar Rev 51. Marshall P, “A Comparative Analysis of the Right to Appeal” (2011) 22 Duke Journal of Comparative and International Law 1. Mason J, “The Regulation of Appeals to the High Court: The Jurisdiction to Grant Special Leave” (1996) 15(1) U Tas LR 1. McMahon M, “Retrials of Persons Acquitted of Indictable Offences in England and Australia: Exceptions to the Rule against Double Jeopardy” (2014) 38 Crim LJ 1. McMurdo M, “The Advantages and Disadvantages of Permanent Intermediate Courts of Appeal” (Paper at 20th Anniversary of the Victorian Court of Appeal, 20 August 2015). Mildren D, The Appellate Jurisdiction of the Courts in Australia (Federation Press, Sydney, 2015). New South Wales Law Reform Commission, Criminal Appeals, Report 140 (March 2014). Odgers S, “The Criminal Proviso: A Case for Reform” in Corns C and Urbas G (eds), Criminal Appeals 1907-2007: Issues and Perspectives, Law in Context Special Issue, Vol 26(1) (Federation Press, Sydney, 2008) p 103. Pattendon R, English Criminal Appeals 1844–1944: Appeals against Conviction and Sentence in England and Wales (Clarendon Press, Oxford, 1996). Power P, Research Materials on the Children’s Court (2015): http:// www.childrenscourt.vic.gov.au (click on “Research Materials”). Priest P, “Appeals in Criminal Cases” in I Freckelton (ed), Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) Vol 3 2016. Priest P and Holdenson P, “The Court of Appeal: Five Years On: Some Reflections” (2000) 115 (Summer) Victorian Bar News 16. Raymond J C, Writing for the Court (Carswell, Toronto, 2010). Redlich R J, “20th Anniversary of the Court of Appeal” (Paper at 20th Anniversary of the Victorian Court of Appeal, 20 August 2015). Sangha B and Moles R, “Mercy or Rights? Post-Appeal Petitions in Australia” (2012) 14 Flinders Law Journal 293. Sangha B and Moles R, “Post-appeal Review Rights: Australia, Britain and Canada” (2012) 36 Crim LJ 300.

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Sangha B, Moles R and Economides K, “The New Statutory Right of Appeal in South Australian Criminal Law: Problems Facing an Applicant – Unanticipated Interpretive Difficulties” (2014) 16 Flinders Law Journal 145. Scalia A and Garner B A, Making Your Case: The Art of Persuading Judges (Thomson West, St Paul, 2008). Sentencing Advisory Council of Victoria, Sentence Appeals in Victoria: Statistical Research Report (2012). Standing Council on Law and Justice, Communique Summary of Out of Session Decisions (2011). Street P, “Early Legal Institutions in Victoria” (1974): www.magistratescourt.vic.gov.au (click on “About Us”).

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Strunk W and White E B, The Elements of Style (McMillan, New York, 1999). Supreme Court of Victoria, Annual Report (2012–2013). Tate P, “Judicial Independence as Institutional Autonomy” (Paper, Annual Conference, Supreme Court of Western Australia, 29–30 August 2014). Tate P, “Statutory Interpretive Techniques under the Charter” (Paper, Human Rights Under the Charter: The Development of Human Rights Law under the Charter, Conference, Melbourne, 2014). Thomson S, “Griffiths and the “Spike”: “Rarity” and “Restraint” in Crown Sentencing Appeals Re-assessed” (2011) 85 ALJ 761. Tilmouth S, “The Wrong Direction: A Case Study and Anatomy of Successful Australian Criminal Appeals” (2015) 40 Aust Bar Rev 18. Urbas G, “Case Note on Bui v DPP (Cth): The High Court Considers Double Jeopardy in Sentence Appeals” (2014) 14 University of Notre Dame Australia Law Review 187. Victoria Legal Aid, Review of Criminal Appeals (September 2014). Victorian Law Reform Commission, Review of the Bail Act, Final Report (2007). Victorian Law Reform Commission, Jury Directions, Final Report (2009). Victorian Law Reform Commission, Crimes (Mental impairment and Unfitness to be Tried) Act 1997, Consultation Paper No 17 (2013). Victorian Law Reform Commission Crimes (Mental impairment and Unfitness to be Tried) Act 1997, Consultation Paper No 19 (2013). Victorian Law Reform Commission, Crimes (Mental impairment and Unfitness to be Tried) Act 1997, Final Report (2014). Victorian Ombudsman (2014) Investigation into deaths and harm in custody, PP No 310.

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Index [References are to paragraph numbers]

A Abandonment of appeal Children’s Court, from, against conviction and sentence, to County Court / Trial Division of Supreme Court, .... [3.310], [3.340], [3.640] notice of abandonment, ................... [3.640] opportunity for, ................................. [3.310] procedure for, .................................... [3.340] striking out of appeal where, ......... [3.340] Federal Court, from indictable proceedings, .......................................... [8.430], [8.470] indictable proceeding, from, against conviction or sentence, to Federal Court, ............................. [8.430], [8.470] interlocutory decision, from to Court of Appeal, ......................................... [5.460] Magistrates’ Court, from, against conviction and sentence / sentence only, to County Court, . [4.230], [4.250], [4.570] consequence of warning of more severe sentence, as, ................................ [4.230] notice of abandonment, ..... [4.250], [4.570] written notice if abandonment against conviction only, .......................... [4.250] trial on indictment, from, against conviction, to Court of Appeal, ...... [6.590], [6.600] reopening where caused by fraud or mistake, ........................................ [6.600] treated as dismissal, ......................... [6.600] unrepresented applicant for special leave to appeal from Court of Appeal to High Court, by, ..................................... [9.290] Abuse of process no appeal rights where, ............ [1.960]–[1.980] fugitives, ............................................. [1.980] vexatious litigants, ............................ [1.970] Acquitted person appeal by Crown against acquittal, ...... [8.40], [8.60], [8.480]–[8.500], [8.640]–[8.660], [8.730]–[8.750], [8.810], [9.70] Court of Appeal to High Court, whether from, ... [9.70] — see also Appeal from Court of Appeal to High Court indictable proceedings to Federal Court, where no case finding, from, .... [8.40], [8.60], [8.480]–[8.500] — see also Appeal to Federal Court from indictable proceedings infringement of double jeopardy principles, as, ................................ [9.70]

summary proceedings to Federal Court, from, ... [8.640]–[8.660], [8.730]–[8.750], [8.810] — see also Appeal to Federal Court from summary proceedings application for retrial of — see Application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court no appeal by Crown against acquittal, where, .................. [0.20], [6.30], [6.1520], [9.70] Advocacy — see Appellate advocacy Alberta Law Reform Institute Criminal Appeal Procedures: Queens Bench and Court of Appeal, Final Report No 101 (2012), ............................................. [0.10] Appeal from Children’s Court — see also Children’s Court of Victoria abandonment of, against conviction and sentence, to County Court / Trial Division of Supreme Court, .... [3.310], [3.340], [3.640] notice of abandonment, ................... [3.640] opportunity for, ................................. [3.310] procedure for, .................................... [3.340] striking out of appeal where, ......... [3.340] case stated for determination by Court of Appeal of question of law arising from, ............................... [3.410]–[3.430] entry of judgment on Children’s Court record, .......................................... [3.430] form of interlocutory appeal, as, ... [3.410] purpose of, ......................................... [3.410] question of law reserved, procedure for, ........................................................ [3.430] refusal to reserve question of law, consequences of, ......................... [3.420] who may request, ............................. [3.410] conviction and sentence, against, to County Court / Trial Division of Supreme Court, ..................... [3.10], [3.30]–[3.70], [3.210]–[3.360], [3.440], [3.580], [3.610], [3.640] abandonment of, ... [3.310], [3.340], [3.640] acquittal after, and reference of question of law by DPP to Court of Appeal, ........................................................ [3.440] adjournment of proceedings, where failure by appellant to appear, ............. [3.350] bail pending, .......... [3.250]–[3.290], [3.330] bail revoked, where, ......................... [3.300] child under 15 years old, where, ..... [3.30] “conviction” defined, ......................... [3.40]

526

Criminal Appeals and Reviews in Victoria

Appeal from Children’s Court — cont disposition powers of appellate court, .............................................. [3.60], [3.70] failure of appellant to appear on, .. [3.350] finding of guilt on, ........................... [3.360] flow chart of procedure, .................. [3.210] hearing date, fixing of, ..................... [3.220] judicial review distinguished, ........ [3.580] new evidence at hearing of, .............. [3.60] notice of appeal, .... [3.210]–[3.240], [3.610] out of time, where, ........................... [3.240] post-hearing procedure / notification, ........................................................ [3.320] pre-sentence report where finding of guilt on, ................................................. [3.360] procedure, . [3.210]–[3.300], [3.330], [3.610] rehearing, as, ........................................ [3.60] right of, ................................................. [3.30] “sentence” defined, ............................. [3.50] stay of sentence pending, ................ [3.330] striking out of, ..................... [3.340], [3.350] verdict of acquittal, where, . [3.70], [3.440] warning to appellant about sentence, ........................................................ [3.310] who brings appeal, ............................. [3.30] costs, ................... [3.590], [7.10], [7.660], [7.700] discontinuance of appeal on question of law to Supreme Court, where, ........................................................ [7.660] not allowed, where, .......................... [3.590] Supreme Court discretion to award on appeal on question of law to Supreme Court, ............................... [3.590], [7.10] final order, against, on question of law, to Judicial Reviews and Appeals List of Trial Division of Supreme Court, ............... [3.570], [3.590], [7.10]–[7.240], [7.520]–[7.710], [7.920], [7.940], [7.960], [7.980] affidavit in reply, ................. [7.540], [7.620] affidavit in support, content, filing and service of, ............ [7.70], [7.80], [7.100], [7.120]–[7.210] affidavit of service, ............................ [7.210] application for copy of recording of relevant hearing for transcription, .......................................................... [7.60] application for leave to appeal to Civil Division of Court of Appeal from decision of Supreme Court judge on, ......... [7.720]–[7.910] — see also Appeal from decision of single Supreme Court judge on question of law or judicial review to Civil Division of Court of Appeal application for summary judgment, ........................................................ [7.600] bail pending, ...................................... [7.240] callover form, ..................................... [7.650] civil proceeding, as, ............................ [7.10] combined book of authorities ......... [7.640] committal proceeding not subject to, ................................ [3.570], [7.20], [7.40] conclusive abandonment of any right of

de novo appeal to County Court or Trial Division of Supreme Court as consequence of, .......................... [3.570] costs, ............ [3.590], [7.10], [7.660], [7.700] court book, ............ [7.540], [7.640], [7.920], [7.980], [7.990] directions, . [7.540]–[7.580], [7.620]–[7.630], [7.920], [7.960] directions hearing, ............................ [7.530] discontinuance of proceeding, ......... [7.10], [7.660] disposition powers of appellate court, ........................................................ [3.570] DPP on behalf of police informant, by, .............................................. [7.20], [7.50] fees, whether, ..................................... [7.120] “final order”, meaning of, ................. [7.30] flow chart of procedure, .................. [7.710] further affidavit, .................. [7.540], [7.620] further directions hearing, .............. [7.650] governing law, ..................................... [7.10] hearing and determination, ........... [7.670], [7.690] importance of jurisdiction, ................ [7.10] initiating documents, filing and service of, ................. [7.70]–[7.210], [7.920]–[7.940] notice of appeal, filing and service of, .... [7.70]–[7.90], [7.120]–[7.220], [7.920], [7.930] notice of hearing, ................ [7.570], [7.650] notice of trial, .................................... [7.650] out of time, application for leave where, ............................................ [7.70], [7.220] procedure, ................ [7.10], [7.520]–[7.710], [7.920]–[7.940], [7.960], [7.980] resolution by consent, ...................... [7.590] right of, ....................... [3.570], [7.20], [7.50] sample forms of orders and directions, .......................................... [7.920], [7.960] summons for directions, content, filing and service of, ................. [7.70], [7.80], [7.110]–[7.220], [7.920], [7.940] withdrawal of proceeding, .............. [7.660] written outlines of submissions, ... [7.540], [7.630] venue, ...................................... [7.10], [7.240] finding of mental impairment, against, to County Court / Trial Division of Supreme Court, ........................... [0.30], [3.150]–[3.170], [3.610] consistency in overall system of appeals in Victoria, ................................... [3.160] disposition powers of appellate court, ........................................................ [3.170] notice of appeal, .................. [3.150], [3.610] right of, ............................................... [3.150] test to determine, .............................. [3.160] finding of unfitness to be tried, against, to County Court / Trial Division of Supreme Court, ........................... [0.30], [3.100]–[3.130], [3.610] disposition powers of appellate court, ........................................................ [3.120] notice of appeal, .................. [3.130], [3.610]

Index Appeal from Children’s Court — cont procedure for appeal, ....................... [3.130] right of, ............................................... [3.100] test for determining, ......................... [3.110] governing law, ................................ [3.10], [3.20] imposition by appellate court of detention (where none originally imposed) following, appeal to Court of Appeal against, ........................... [3.370]–[3.400] bail pending, ...................................... [3.390] disposition powers of Court of Appeal, ........................................................ [3.400] leave required to, .............................. [3.370] no right of appeal, where, ............... [3.370] notice of appeal, ................................ [3.370] Registrar of Criminal Appeals, role of, ........................................................ [3.370] test to determine, .............................. [3.380] warning by Court of Appeal to appellant about sentence, ........................... [3.380] judicial review of decision of single judge hearing original appeal, of, ...... [3.580] leniency of sentence imposed in summary proceeding, against, by DPP to County Court / Trial Division of Supreme Court, ............ [3.450]–[3.500], [3.620] disposition powers of appellate court, ........................................................ [3.470] double jeopardy and, ......... [3.450], [3.470] DPP Prosecutions Policies, Policy 52, “DPP appeals under s 427 and 429A of the Children Youth and Families Act 2005”, .............................. [3.450], [4.460] finality and, ........................................ [3.450] notice of appeal, .... [3.480], [3.490], [3.620] out of time, where, ........................... [3.490] potential impact on child of, .......... [3.450] procedure for, ...................... [3.480], [3.490] public interest requirement, ............ [3.450] rehearing, as, ...................................... [3.500] right of, ............................................... [3.450] who is appellant, .............................. [3.460] order for undertaking, bond, etc, against, to County Court / Trial Division of Supreme Court, ..... [3.30], [3.50]–[3.80] age of appellant, relevance of, .......... [3.80] disposition powers of appellate court, .............................................. [3.70], [3.80] rehearing, as, ........................................ [3.60] right of, ................................................. [3.30] referral of question of law by DPP to Court of Appeal after acquittal of person following, ..................................... [3.440] sentence alone, against, by convicted person to County Court / Trial Division of Supreme Court — see “conviction and sentence, against, to County Court / Trial Division of Supreme Court” above sentence for indictable offence heard and determined summarily, against, by DPP to County Court / Trial Division of Supreme Court, where child

527

breached undertaking to assist authorities, ....... [3.510]–[3.560], [3.620] commencement of, ............................ [3.520] disposition powers of appellate court, ........................................................ [3.530] double jeopardy, whether relevant, ........................................................ [3.530] failure of respondent child to appear at, ........................................................ [3.550] nature of appeal (not rehearing), ... [3.520] notice of appeal, .................. [3.540], [3.620] pre-requisites for, .............................. [3.510] procedure for, .................................... [3.540] recording and notification by Registrar of result of, ....................................... [3.560] supervision order, against, to County Court / Trial Division of Supreme Court, ............................ [3.180], [3.610], [3.630] child, by, ............................... [3.180], [3.610] Crown, by, ............................ [3.180], [3.630] notice of appeal, .... [3.180], [3.610], [3.630] unconditional release where finding of not guilty of indictable offence heard summarily because of mental impairment, against, by DPP to County Court / Trial Division of Supreme Court, ............ [3.190], [3.630] disposition powers of appellate court, ........................................................ [3.190] notice of appeal, .................. [3.190], [3.630] procedure, .......................................... [3.190] Appeal from County Court — see also County Court of Victoria imposition of detention following appeal from Magistrates’ Court, against, to Court of Appeal, ........ [4.270]–[4.320], [4.560] bail pending, ...................................... [4.310] disposition powers on successful, . [4.300] double breach of rule against double jeopardy, whether, ...................... [4.290] justification for, .................................. [4.270] notice of application, filing and notification of, ............................. [4.310] out of time, ......................................... [4.320] procedure for, .................................... [4.310] right to apply for leave to, ............. [4.270], [4.310], [4.560] test for application for leave to, ..... [4.280] test to determine, .............................. [4.290] warning about sentence, .................. [4.290] Appeal from Court of Appeal to High Court acquittal, against, by Crown, whether, .. [9.70] advocacy, ........ [10.10], [10.330], [10.340] — see also Appellate advocacy generally, .......................................... [10.330] oral argument, ................................. [10.340] application for special leave for, ............ [0.20], [1.870], [2.170], [9.10], [9.20], [9.40]–[9.70], [9.90], [9.100], [9.140]–[9.320], [9.620], [10.330] advocacy, .......................... [10.330], [10.340]

528

Criminal Appeals and Reviews in Victoria

Appeal from Court of Appeal to High Court — cont application book, content, filing and service of, ..................................... [9.220] determination of, ... [9.250], [9.280], [9.300] — see also “determination of application for special leave for” below directions by Registrar, .................... [9.230] discontinuance of, procedure for, .. [9.240] grounds for, ....... [9.20], [9.40]–[9.70] — see also “grounds for application for special leave for” below intervention by Commonwealth or State or Territory Attorney–General in, ........................................................ [9.320] listing for hearing, .............. [9.250], [9.260] notice of appearance by respondent, ........................................................ [9.190] notice of application for, ..... [9.90], [9.140], [9.160]–[9.180], [9.220], [9.280], [9.290], [9.310], [9.620] — see also “notice of application for special leave for” below operation of provisions for, . [9.90], [9.100] procedure on, .... [9.140]–[9.300], [9.620] — see also “procedure on application for special leave for” below refusal of, not usually detailed reasons for, ........................................................ [9.100] reluctance to grant in sentencing matters, .......................................................... [9.50] reply by applicant, filing and service of, .......................................... [9.210], [9.220] response by applicant, filing and service of, ...................... [9.200], [9.220], [9.620] stringent statutory criteria for grant of, .............................................. [0.20], [9.10] submitting appearance by repondent, .......................................... [9.190], [9.220] test to determine, .............................. [9.100] unrepresented (self–represented) applicant, .... [9.270]–[9.300], [9.620] — see also “unrepresented applicant for special leave for” below who can apply for, .................. [9.40]–[9.70] bail before and after grant of special leave for, ........................................................ [9.330] commencement of, after special leave granted, .......................................... [9.340]–[9.540] appeal book, content, filing and service of, ............................ [9.360], [9.430], [9.440] appeal book index, content, settlement, filing and service of, .... [9.410]–[9.430] directions by Registrar after filing of notice of appeal, ......................... [9.460] dismissal for want of prosecution, ........................................................ [9.470] exhibits, arrangement and filing of, .......................................... [9.360], [9.430] flow chart of procedure for, ............ [9.350] notice of appeal, .... [9.360]–[9.390], [9.460] — see also “notice of appeal” below

notice of appearance by respondent, ........................................................ [9.400] notice of discontinuance of, ............ [9.450] outline of oral submissions, ............ [9.540] submitting appearance by respondent, ........................................................ [9.400] written submissions by appellant, ......... [9.480], [9.510]–[9.530] — see also “written submissions by appellant on” below written submission by intervener, .......................................... [9.500], [9.530] written submissions by respondent, ......... [9.490], [9.520], [9.530] — see also “written submissions by respondent on” below conviction, against, ........................ [9.10], [9.40] costs of hearing of, .................................. [9.580] determination of application for special leave for, ..................... [9.250], [9.280], [9.300] hearing, with, ....................... [9.250], [9.260] no oral argument, ............... [9.250], [9.280] unrepresented applicant, where, ... [9.280], [9.300] discontinuance of, .................................... [9.450] dismissal for want of prosecution, ....... [9.470] finality of judgment of, ............................. [9.30] generally, ........................................ [9.10]–[9.620] grounds for application for special leave for, .................................. [9.20], [9.40]–[9.70] appeal against acquittal by Crown, where, .......................................................... [9.70] appeal against conviction, where, ... [9.40] appeal against sentence, where, ....... [9.50] appeal against sentence by Crown, . [9.60] importance for overall administration of criminal justice, need for, ........... [9.20] hearing of appeal, ......... [9.20], [9.550]–[9.580], [10.330] bench, .................................................. [9.550] costs, .................................................... [9.580] decision after, usual course for, ...... [9.550] fresh evidence not received, ............ [9.20], [9.570], [10.330] reliance on “new” ground of appeal, whether, ....................................... [9.560] notice of appeal, ........... [9.360]–[9.390], [9.460] affidavit of service of, ....................... [9.390] content of, ........................................... [9.360] directions by Registrar after filing of, ........................................................ [9.460] filing of, ................................ [9.370], [9.380] lodgment with court below of, ...... [9.390] service of, ........................................... [9.390] notice of application for special leave for, . [9.90], [9.140], [9.160]–[9.180], [9.220], [9.270]–[9.290], [9.310], [9.620] abandonment by unrepresented applicant of, .................................................. [9.290] accompanying documents, ............. [9.160], [9.290] content of, ........................................... [9.160] filing of, ... [9.140], [9.160], [9.170], [9.280], [9.290]

Index Appeal from Court of Appeal to High Court — cont format and length of, ....................... [9.160] lodgment with court below of copy of, ........................................................ [9.180] operation of, not as stay of proceedings below, ........................................... [9.310] summary of arguments, .... [9.140], [9.160] time for filing of affidavit of service, ............................ [9.180], [9.280], [9.290] time for service on respondent of, ............................ [9.180], [9.280], [9.290] unrepresented applicant, by, ............................ [9.270]–[9.290], [9.620] orders available on successful, ............. [9.120], [9.130], [9.610] acquittal only in exceptional circumstances, ............... [9.130], [9.610] affirm judgment appealed from, .... [9.120] modify judgment appealed from, .. [9.120] order new trial, ................... [9.120], [9.130] remit to court appealed from, ........ [9.120] reverse judgment appealed from, .. [9.120] procedure on application for, . [9.140]–[9.300], [9.620] flowchart of basic steps, .................. [9.150] governing rules, ................................ [9.140] primacy to written submissions, .... [9.140] sentence, against, ... [9.10], [9.20], [9.40], [9.50] reluctance to grant special leave for, .......................................................... [9.50] remittal to Court of Appeal for resentencing if successful, .......... [9.20] sentence, against, by Crown, ...... [9.10], [9.40], [9.60], [10.330] infringement of double jeopardy principles, as, ................................ [9.60] reluctance to grant special leave for, .......................................... [9.60], [10.330] test for determining, ................................ [9.110] two distinct stages for, ................ [9.90], [9.100] unrepresented (self-represented) applicant for special leave for, .......... [9.270]–[9.300], [9.620] abandonment by, ............................... [9.290] basic steps where, ............... [9.280], [9.290] determination of application where, .......................................... [9.280], [9.300] dismissal of application where, ...... [9.300] percentage of applicants where, .... [9.270] who can appeal, ............................. [9.40]–[9.70] written submissions by appellant on, . [9.480], [9.510]–[9.530] filing and service of, ........... [9.480], [9.510] filing and service of chronology and annotated version of, ... [9.380], [9.520] publication of, .................................... [9.530] reply, in, .............................................. [9.510] written submissions by respondent on, ............................ [9.490], [9.520], [9.530] content of, ........................................... [9.490] filing and service of, ......................... [9.490] filing and service of chronology and annotated version of, ................. [9.520]

529

publication of, .................................... [9.530] Appeal from decision of single Supreme Court judge on question of law or judicial review to Civil Division of Court of Appeal — see also Court of Appeal of Victoria application for leave to, ............ [7.720]–[7.910] agreed list of transcript references, content and filing of, ................. [7.830], [7.850] ancillary applications, ...................... [7.770] appeal book, ....................................... [7.730] application book, filing, service and settlement by Registrar contents of, ........................................................ [7.820] application for extension of time to commence, ................................... [7.770] application to set aside or vary order for dismissal without oral hearing of, ........................................................ [7.890] “civil appeal”, meaning of, ............. [7.720] combined folder of authorities, format and filing of, ... [7.730], [7.830], [7.840] crossapplication for leave to appeal, ........................................................ [7.810] DPP or other prosecuting agency, by, where, ........................................... [7.720] dismissal after oral hearing of, ....... [7.880] dismissal without oral hearing of, . [7.890] disposition powers of Court of Appeal, ........................................................ [7.910] grant of, ................................ [7.740], [7.900] initiating documents, ....................... [7.760] notice of contention, ......................... [7.810] notice of intention not to respond or contest, ......................................... [7.800] oral hearing of, .................... [7.870], [7.880] procedures distinguished from those in Criminal Division, ...................... [7.730] procedures for, ..................... [7.730]–[7.910] referral to bench of two or more judges by single judge of, whether, .......... [7.870] referral to single judge by Registrar of, ........................................................ [7.860] service on respondent, ..................... [7.780] summary of facts, proceedings and issues, ........................................................ [7.730] time limit for commencing, ........... [7.750], [7.760] written case in response, ................. [7.790] Appeal from Magistrates’ Court — see also Magistrates’ Court of Victoria abandonment of, against conviction and sentence / sentence only, to County Court, ............... [4.230], [4.250], [4.570] consequence of warning of more severe sentence, as, ................................ [4.230] notice of abandonment, ..... [4.250], [4.570] written notice if abandonment against conviction only, .......................... [4.250] conviction and sentence, against, to County Court, .................... [0.30], [4.10], [4.30],

530

Criminal Appeals and Reviews in Victoria

Appeal from Magistrates’ Court — cont [4.60]–[4.80], [4.130]–[4.270], [4.330]–[4.360], [4.500], [4.530], [4.540], [4.570], [4.580], [6.1390] — see also County Court of Victoria abandonment of, ... [4.230], [4.250], [4.570] absence of jury, .................................... [4.60] acquittal following, ........................... [4.360] bail pending, .......... [4.170]–[4.220], [4.240] costs, .................................................... [4.500] defence of mental impairment, basis of, where, ............................................. [4.80] disposition powers of County Court on, ............................................ [4.70], [4.270] failure of appellant to appear at, .. [4.260], [4.580] finality of, ........................................... [4.270] fixing of date for, .............................. [4.140] flow chart of procedure, .................. [4.130] hearing de novo, as, ............... [0.30], [4.60] not a “trial”, ......................................... [4.60] notice of appeal, .... [4.140]–[4.160], [4.530] notice of undertaking to appear, ... [4.140], [4.540] procedure, ............................. [4.130]–[4.260] recording of result of, ........................ [4.70] Registrar, role of, ............................... [4.140] reservation of question of law by County Court for determination by Court of Appeal, ...... [4.330]–[4.350], [6.1390] — see also Case stated right of, ................................................. [4.30] striking out of, where, ...... [4.160], [4.230], [4.260] warning about sentence, .... [4.140], [4.230] decision of judicial registrar, against, .. [4.110], [4.480] County Court, to, ..... [4.110], [4.500] — see also County Court of Victoria Judicial Reviews and Appeals List of Trial Division of Supreme Court, on question of law, to ..................... [4.480] magistrate, to, .................................... [4.110] final order, against, on question of law, to Judicial Reviews and Appeals List of Trial Division of Supreme Court, ... [4.30], [4.480], [4.500], [7.10]–[7.240], [7.520]–[7.710], [7.920], [7.940], [7.960], [7.980] affidavit in reply, ................. [7.540], [7.620] affidavit in support, content, filing and service of, ............ [7.70], [7.80], [7.100], [7.120]–[7.210] affidavit of service, ............................ [7.210] appeal to County Court not permitted if already commenced, .................... [4.30] application for copy of recording of relevant hearing for transcription, .......................................................... [7.60] application for leave to appeal to Civil Division of Court of Appeal from decision of Supreme Court judge on, ......... [7.720]–[7.910] — see also Appeal from decision of single Supreme

Court judge on question of law or judicial review to Civil Division of Court of Appeal application for summary judgment, ........................................................ [7.600] availability of, .................................... [4.480] bail pending, ...................................... [7.240] callover form, ..................................... [7.650] civil proceeding, as, ............................ [7.10] combined book of authorities ......... [7.640] committal proceeding not subject to, ................................ [4.480], [7.20], [7.40] conclusive abandonment of any right of de novo appeal to County Court or Trial Division of Supreme Court as consequence of, .......................... [3.570] costs, ............ [4.500], [7.10], [7.660], [7.700] court book, ............ [7.540], [7.640], [7.920], [7.980], [7.990] decision of judicial registrar, where, ............................................ [4.480], [7.20] directions, . [7.540]–[7.580], [7.620]–[7.630], [7.920], [7.960] directions hearing, ............................ [7.530] discontinuance of proceeding, ......... [7.10], [7.660] DPP on behalf of police informant, by, .............................................. [7.20], [7.50] examples of “question of law”, ...... [4.480] fees, whether, ..................................... [7.120] “final order”, meaning of, ................. [7.30] flow chart of procedure, .................. [7.710] further affidavit, .................. [7.540], [7.620] further directions hearing, .............. [7.650] governing law, ..................................... [7.10] hearing and determination, ........... [7.670], [7.690] importance of jurisdiction, ................ [7.10] initiating documents, filing and service of, ................. [7.70]–[7.210], [7.920]–[7.940] notice of appeal, filing and service of, .... [7.70]–[7.90], [7.120]–[7.220], [7.920], [7.930] notice of hearing, ................ [7.570], [7.650] notice of trial, .................................... [7.650] out of time, application for leave where, ............................................ [7.70], [7.220] procedure, ................ [7.10], [7.520]–[7.710], [7.920]–[7.940], [7.960], [7.980] resolution by consent, ...................... [7.590] right of, ....................... [3.570], [7.20], [7.50] sample forms of orders and directions, .......................................... [7.920], [7.960] summons for directions, content, filing and service of, ................. [7.70], [7.80], [7.110]–[7.220], [7.920], [7.940] withdrawal of proceeding, .............. [7.660] written outlines of submissions, ... [7.540], [7.630] venue, ...................................... [7.10], [7.240] who brings, ................ [4.480], [7.20], [7.50] leniency of sentence, against, by DPP to County Court, ................ [3.450], [4.10],

Index Appeal from Magistrates’ Court — cont [4.370]–[4.420], [4.500], [4.550] — see also County Court of Victoria costs, .................................................... [4.500] disposition powers of County Court, ........................................................ [4.390] double jeopardy and, ......... [4.370], [4.390] finality and, ........................................ [4.370] hearing de novo, as, ......................... [4.420] notice of appeal, content, filing and service of, ....................... [4.400], [4.550] out of time, ......................................... [4.410] procedure for, ...................... [4.400], [4.410] prohibition of further appeal if, ..... [4.370] public interest in, .............................. [4.370] right of, ................................. [3.450], [4.370] scope of, .............................................. [4.430] who is appellant, .............................. [4.380] sentence, against, by DPP to County Court, where convicted person breached undertaking to asssist authorities, .. [4.10], [4.430]–[4.470], [4.500], [4.550] commencement of, ............................ [4.440] costs, no power to award, ............... [4.500] disposition powers of County Court, ........................................................ [4.450] failure of respondent to appear at hearing, consequences of, ......................... [4.470] limits to, .............................................. [4.430] nature of, ............................................ [4.440] notice of appeal, signing, filing and service of, ....................... [4.460], [4.550] procedure for, .................................... [4.460] right of, ............................................... [4.430] sentence alone, against, by convicted person to County Court, . [4.10], [4.30], [4.60], [4.70], [4.120]–[4.270], [4.330]–[4.350], [4.500], [4.530], [4.540], [4.570], [4.580], [6.1390] — see also County Court of Victoria abandonment of, ... [4.230], [4.250], [4.570] absence of jury, .................................... [4.60] bail pending, .......... [4.170]–[4.220], [4.240] costs, .................................................... [4.500] disposition powers of County Court, ............................................ [4.70], [4.270] failure of appellant to appear at, .. [4.260], [4.580] finality of, ........................................... [4.270] fixing of date for, .............................. [4.140] flow chart of procedure, .................. [4.130] hearing de novo, as, ........................... [4.60] Koori Court Division, in, ................. [4.120] not a “trial”, ......................................... [4.60] notice of appeal, .... [4.140]–[4.160], [4.530] notice of undertaking to appear, ... [4.140], [4.540] procedure, ............................. [4.130]–[4.260] recording of result of, ........................ [4.70] Registrar, role of, ................. [4.140], [4.160] reservation of question of law by County Court for determination by Court of Appeal, ...... [4.330]–[4.350], [6.1390] — see also Case stated

531

right of, ................................................. [4.30] stay of proceedings pending, ......... [4.240] striking out of, where, ...... [4.160], [4.230], [4.260] warning about sentence, .... [4.140], [4.230] Appeal from trial on indictment aquittal, against, DPP prohibited from, .......................................... [6.30], [6.1520] conviction, against, to Court of Appeal — see Appeal to Court of Appeal against conviction at trial on indictment; Court of Appeal of Victoria finding of unfitness to stand trial, against — see Appeal to Court of Appeal against finding of unfitness to stand trial at trial on indictment sentence, against, by convicted person — see Appeal to Court of Appeal by convicted person against sentence imposed at trial on indictment sentence, against, by DPP — see Appeal to Court of Appeal by DPP against sentence imposed at trial on indictment verdict of not guilty because of mental impairment, against, by accused person — see Appeal to Court of Appeal by accused person against verdict of not guilty because of mental impairment at trial on indictment Appeal of interlocutory decision to Court of Appeal — see Interlocutory appeal to Court of Appeal Appeal to Court of Appeal — see also Appeal from County Court; Appeal from decision of single Supreme Court judge on question of law or judicial review to Civil Division of Court of Appeal; Appeal to Court of Appeal against conviction at trial on indictment; Appeal to Court of Appeal against finding of unfitness to stand trial at trial on indictment; Appeal to Court of Appeal by accused person against verdict of not guilty because of mental impairment at trial on indictment; Appeal to Court of Appeal by convicted person against sentence imposed at trial on indictment; Appeal to Court of Appeal by DPP against sentence imposed at trial on indictment; Interlocutory appeal to Court of Appeal advocacy, ................. [10.40]–[10.310] — see also Appellate advocacy DPP Prosecutions Policies, Policy 11, “Appeals by the DPP to the Court of Appeal”, .......... [3.450], [4.370], [6.1120], [6.1220]

532

Criminal Appeals and Reviews in Victoria

Appeal to Court of Appeal against conviction at trial on indictment — see also Court of Appeal of Victoria abandonment of, ........................ [6.590], [6.600] reopening where caused by fraud or mistake, ........................................ [6.600] treated as dismissal, ......................... [6.600] advocacy, ... [10.10]–[10.170], [10.230]–[10.310], [10.350], [10.360] — see also Appellate advocacy addressing and dealing with questions / directions / responses from bench, ....... [10.20], [10.300], [10.310], [10.350], [10.360] approach to take, generally, ............ [10.10] drafting grounds, ............. [10.40], [10.120], [10.160], [10.170], [10.240]–[10.290] drafting written case, ...................... [10.10], [10.240]–[10.290] focus, ....... [10.20], [10.30], [10.80], [10.230] identifying issues, ............................. [10.20] knowledge of facts of trial, ............. [10.30] knowledge of procedural rules, ..... [10.30] knowledge of relevant law, ............. [10.30] opening statement, ........................... [10.20] preparing oral submissions based on written case, .............................. [10.300] preparation generally, ........ [10.10], [10.20] resource materials, ............................ [10.50] wants and needs of appellate court, ........................ [10.20], [10.300], [10.310] wellbeing and, ................. [10.350]–[10.370] after guilty plea, whether, ........................ [6.60] application for leave to, ......................... [1.620], [6.350]–[6.470], [6.590], [6.600], [10.60], [10.70], [10.90] abandonment of, ................. [6.590], [6.600] basic test for determination of, ..... [1.620], [6.440] determination of, with or without oral hearing, ........... [6.350], [6.370], [6.410], [6.430]–[6.470] flow chart of procedure, .................. [6.360] function of, ......................................... [6.440] governing legislation, ....................... [6.350] grant of, ................................ [6.440], [6.450] hearing of, as hearing of appeal itself, where, ........................................... [6.460] not granted, where, .......................... [6.460] notice of, .. [6.350], [6.370]–[6.430], [6.450], [6.460], [10.60] — see also “notice of application for leave to” below options of Appeal Judge(s) after reading, .......................................... [6.440]–[6.460] oral hearing, where, ........... [10.60], [10.90] presence of applicant at hearing of, ........................................................ [6.470] provision of transcript to parties by Registrar of Criminal Appeals, .......................................... [6.350], [6.390] referral of, ............................. [6.440], [6.460] refusal of, .. [6.410], [6.440], [6.450], [6.460] renewal application by Crown, whether, ........................................................ [6.460]

renewal of, if refused on some or all grounds, ....................................... [6.460] reopening of, to correct substantive mistakes, ...................................... [6.600] test to determine, ................ [6.440], [10.70] written case in support, .................. [6.350], [6.370]–[6.400] — see also “written case in support of application for leave to” below written response by Crown to, ...... [6.350], [6.400] written submission by Crown addressing applicant’s application for extension of time for, ........................................ [6.430] bail after, pending new trial, ................. [6.570] bail pending, ............................... [6.540]–[6.560] exceptional circumstances for grant of, ........................................................ [6.550] general approach of courts to granting, ........................................................ [6.540] procedure on application for, ......... [6.560] right to, ............................................... [6.540] before sentence, whether, ......................... [6.50] burden of proof, ....................................... [6.110] “conviction” defined, ................................ [6.40] costs on successful, .................................. [6.580] dismissal by Court of Appeal of, ........... [6.80], [6.600] disposition powers of court on successful, ............................ [6.160]–[6.240], [6.570] acquittal, ............................... [6.160], [6.170] conviction of alternative offence, .. [6.160], [6.180] new trial, .............................. [6.160], [6.170] new trial for alternative offence, ... [6.160], [6.190] order attendance of appellant for new trial, ................................ [6.160], [6.220] remand appellant in custody or grant bail pending new trial, ....... [6.160], [6.570] resentence for other offences, ........ [6.160], [6.240] resentence for related offence, ....... [6.160], [6.230] set aside conviction, ......................... [6.160] substitute verdict of not guilty because of mental impairment, ..... [6.160], [6.200] substitute verdict of not guilty of alternative offence because of mental impairment, ................... [6.160], [6.210] failure of appellant to appear at new trial after, warrant of arrest where, . [6.570] finality principle, ...................................... [6.600] forfeiture and destruction of property after conviction, stay of order for, where, ........................................................ [6.480] fresh evidence on, ...... [6.150], [6.1740], [9.570] discretionary power to admit, ....... [6.150], [9.570] meaning of, ........................ [6.150], [6.1740] new evidence distinguished, .......... [6.150] governing legislation, .............................. [6.350] grounds of, .................................... [6.70], [6.370]

Index Appeal to Court of Appeal against conviction at trial on indictment — cont grounds upon which Court of Appeal can uphold, .. [0.30], [1.630], [6.70]–[6.150], [6.170], [6.370], [10.100]–[10.170] burden of proof, .... [1.630], [6.110], [6.120] fresh evidence and, ........................... [6.150] substantial miscarriage of justice as result of error or irregularity, . [1.630], [6.80], [6.110], [6.120], [10.100], [10.130]–[10.170] — see also “substantial miscarriage of justice as result of error or irregularity as ground to uphold” below [6.80], [6.110], [6.120] substantial miscarriage of justice for any other reason, .................. [1.630], [6.80], [6.110]–[6.150], [10.100], [10.130], [10.150], [10.160] — see also “substantial miscarriage of justice for any other reason as ground to uphold” below unreasonable or unsupportable verdict of jury, ......... [0.30], [1.630], [6.80]–[6.110], [6.170], [10.100], [10.110], [10.120] — see also “unreasonable or unsupportable verdict of jury as ground to uphold” below guilty plea, whether after, ........................ [6.60] hearing of, ....... [6.460], [6.470], [6.500]–[6.560] bail pending, ........................ [6.540]–[6.560] case management by Registrar of Criminal Appeals before, ........................... [6.500] court directions to parties, .............. [6.500] duty of court to deal with each ground of appeal, .......................................... [6.500] hearing of application for leave to appeal may be treated as, ...................... [6.460] judgment after, .................................. [6.500] oral arguments at, ............... [6.500]–[6.530] neutral summary by Registrar of Criminal Appeals before, ........................... [6.500] presence of appellant at, .................. [6.470] procedure at, ........................ [6.500], [6.510] raising /objecting to points not raised /objected to at trial, ..... [6.510]–[6.530] leave to, requirement of, ........... [2.170], [6.10], [6.20], [6.70] — see also “application for leave to” above new evidence on, ....................... [6.150], [9.570] discretionary power to adnit, ........ [6.150], [9.570] fresh evidence distinguished, ......... [6.150] meaning of, ........................................ [6.150] notice of application for leave to, ........ [6.350], [6.370]–[6.430], [6.450], [6.460] accompanying written case in support, ............................ [6.350], [6.370]–[6.400] content of, ............................. [6.350], [6.370] filing of, .... [6.350], [6.370], [6.390], [6.420] out of time, ........................... [6.420], [6.430] referral by Registrar of Criminal Appeals to Appeal Judge(s), ...... [6.350], [6.410]

533

renewal of, if leave refused on some or all grounds, ....................................... [6.460] signing of, ........................................... [6.370] treated as notice of appeal if leave granted, ........................................ [6.450] obtaining recording of relevant parts of trial before deciding to commence, . [6.370] procedure, ........ [6.350]–[6.560], [6.590], [6.600] application for leave to appeal, ... [6.350]–[6.470], [6.590], [6.600] — see also “application for leave to” above governing legislation, ....................... [6.350] hearing of appeal, .............. [6.460], [6.470], [6.500]–[6.560] — see also “hearing of” above report of trial judge, ................................ [6.490] right of, subject to leave to, ...... [2.170], [6.10], [6.20], [6.70] role of Registrar of Criminal Appeals, ............. [6.350], [6.390], [6.400]–[6.430], [6.450], [6.490], [6.500] sentence, whether before, ......................... [6.50] statutory right of convicted person to, subject to leave to, .......... [2.170], [6.10], [6.20], [6.70] stay of sentence during, whether, ......... [1.710] substantial miscarriage of justice as result of error or irregularity as ground to uphold, .. [0.30], [1.630], [6.80], [6.110], [6.120], [10.100], [10.130]–[10.170] meaning of and test for “substantial miscarriage of justice”, ............. [6.110], [6.120], [10.130] meaning of “error or irregularity”, ........................................................ [6.110] no common form proviso, . [0.30], [1.630], [6.110], [6.120] types of errors and irregularities, ...................................................... [10.140] substantial miscarriage of justice for any other reason as ground to uphold, .... [0.30], [1.630], [6.80], [6.110]–[6.150], [10.100], [10.130], [10.150], [10.160] common form provisions, under, .. [6.130] fresh evidence, where, ..................... [6.150] meaning of and test for “substantial miscarriage of justice”, ........................... [6.110]–[6.130], [10.130] no common form proviso, . [0.30], [1.630], [6.110], [6.120] types of cases covered by, ............... [6.140] unreasonable or unsupportable verdict of jury as ground to uphold, ... [0.30], [1.630], [6.80]–[6.110], [6.170], [10.100], [10.110], [10.120] acquittal as appropriate order where, ........................................................ [6.170] inconsistent verdicts, ........................ [6.100] substantial miscarriage of justice where, ............................ [6.80], [6.110], [10.110] unsafe and unsatisfactory verdict, .. [6.90], [10.110] warrant of arrest of appellant if fails to appear at new trial, issue of, ... [6.570]

534

Criminal Appeals and Reviews in Victoria

Appeal to Court of Appeal against conviction at trial on indictment — cont who can appeal, ......................................... [6.30] written case in support of application for leave to, ............ [6.350], [6.370]–[6.400] accompaniment to notice of application for leave, ........................ [6.350], [6.370] filing of, ................................ [6.350], [6.390] form and content of, ........................ [6.380] purpose of, ......................................... [6.380] revision of, ......................................... [6.400] signing by counsel and solicitors of, ........................................................ [6.380] Appeal to Court of Appeal against finding of unfitness to stand trial at trial on indictment — see also Court of Appeal of Victoria; Unfitness to be tried disposition powers of court on successful, ........................................................ [6.280] procedure, ................................................. [6.260] Registrar of Criminal Appeals, role of, ........................................................ [6.260] statutory right to, subject to leave, ........ [6.10], [6.250] test for determining, ................................ [6.270] time to commence, .................................. [6.260] “unfitness” defined, ................................ [6.250] Appeal to Court of Appeal by accused person against verdict of not guilty because of mental impairment at trial on indictment — see also Court of Appeal of Victoria; Mental impairment circumstances where verdict could arise, ........................................................ [6.290] disposition powers of court on successful, ........................................................ [6.310] generally, ..................................................... [6.10] grounds for determining, ....................... [6.300] procedure, ................................................. [6.290] Registrar of Criminal Appeals, role of, ........................................................ [6.290] statutory right of, subject to leave, ........ [6.10], [6.290] Appeal to Court of Appeal by convicted person against sentence imposed at trial on indictment — see also Court of Appeal of Victoria; Sentencing advocacy, ......... [6.640], [6.660]–[6.750], [6.980], [10.10]–[10.60], [10.80], [10.90], [10.180]–[10.310], [10.350], [10.360] — see also Appellate advocacy addressing and dealing with questions / directions / responses from bench, ....... [10.20], [10.300], [10.310], [10.350], [10.360] approach to take, generally, ............ [10.10] drafting grounds, . [6.640], [6.660]–[6.750], [6.980], [10.40], [10.190]–[10.290]

drafting written case, ...................... [10.10], [10.240]–[10.290] focus, ....... [10.20], [10.30], [10.80], [10.230] identifying issues, ............................. [10.20] knowledge of facts of trial, ............. [10.30] knowledge of procedural rules, ..... [10.30] knowledge of relevant law, ............. [10.30] opening statement, ........................... [10.20] preparing oral submissions based on written case, .............................. [10.300] preparation generally, ........ [10.10], [10.20] resource materials, ............................ [10.50] wants and needs of appellate court, ........................ [10.20], [10.300], [10.310] wellbeing and, ................. [10.350]–[10.370] application for leave to, ........... [1.650], [6.420], [6.430], [6.970]–[6.1010], [6.1030]–[6.1070], [10.60], [10.80], [10.90] Crown, role of, ................ [6.1010], [6.1070] determination of renewed, treated as hearing of appeal itself, where, ...................................................... [6.1070] determination of, with or without oral hearing, ......................... [6.970], [6.980], [6.1040]–[6.1070] leave granted or case referred, procedure where, ......................................... [6.1060] leave refused by single Judge of Appeal, procedure where, ..................... [6.1070] notice of, .............................. [6.420], [6.430], [6.970]–[6.1010], [6.1030], [10.60] — see also “notice of application for leave to” below oral hearing of, ... [6.980], [6.1050], [10.60], [10.90] provision of transcript to parties by Registrar of Criminal Appeals, ........................ [6.970], [6.1000], [6.1010] referral to one or more Judges of Appeal by Registrar of Criminal Appeals of, ........................................ [6.970], [6.1040] rehearing of, where, ......................... [1.650] response by Crown, ........................ [6.1010] revision of, whether, ....................... [6.1010] test for determination of, ................ [1.650], [6.1050], [10.80] treated as notice of appeal, where, ...................................................... [6.1060] disposition powers of court on successful, ...................................................... [6.1110] distinguished from appeal by DPP, ... [6.1120], [6.1140], [6.1150] drafting gounds of, ..... [6.640], [6.660]–[6.750], [6.980], [10.40], [10.190]–[10.290] arguments about weight attaching to particular matters as particulars of manifest excess ground, ........... [6.660], [6.980] grounds of, ..... [6.630], [6.640], [6.660]–[6.750], [6.980], [10.190]–[10.290] drafting, ... [6.640], [6.660]–[6.750], [6.980], [10.40], [10.190]–[10.290] — see also “drafting grounds of” above

Index Appeal to Court of Appeal by convicted person against sentence imposed at trial on indictment — cont no particular criteria for, ................. [6.980] specific disclosed error or manifest excess as basis of, ..................... [6.630], [6.980] grounds upon which court must uphold, ............. [1.640], [1.890], [6.630]–[6.650], [10.180]–[10.200] approach of court to, ........................ [6.640] “disclosed” and “undisclosed” error distinguished, ............................. [6.640] error in sentence first imposed and different sentence should be imposed, .......................... [1.640], [6.630], [10.180] examples of material error, ............. [6.640] manifestly excessive sentence, ....... [6.640], [6.650], [10.190], [10.200] — see also “manifestly excessive sentence, establishing as ground” below relevance of principles in House v The King, ................ [1.890], [6.640], [10.230] hearing of, .................. [6.1080]–[6.1100], [9.570] fresh evidence, ................... [6.1090], [9.570] neutral summary by Registrar of Criminal Appeals, ..................................... [6.1080] overview of procedure, .................. [6.1080] raising /objecting to points /arguments not raised /objected to at trial/sentencing hearing, ........................... [6.510]–[6.530], [6.1100] leave for, requirement of, .......... [2.170], [6.10], [6.20], [6.610], [6.620] manifestly excessive sentence, establishing as ground, .......... [6.640]–[6.960], [10.190], [10.200] crushing sentence, ............................. [6.860] cumulation and concurrency of sentences, ........................................................ [6.910] current sentencing practices, relevance of, ............ [6.650], [6.840], [6.845], [10.190] double punishment, ......................... [6.870] maximum penalty, relevance of, ... [6.830], [10.200] mental state of offender, .... [6.950], [6.960] non–parole period, ............. [6.880], [6.930] order of serving sentences, ............. [6.880] parity principle where co–offenders/ same offence by another in same circumstances, ............................. [6.940] parsinomy principle, ........................ [6.920] pre–sentence detention, whether relevant, .......................................... [6.890], [6.900] purposes of sentencing, .... [6.760]–[6.820], [10.200] test for, ................................................ [6.650] time reckoned as served, ... [6.890], [6.900] totality of sentence, ............. [6.850], [6.860] weight attaching to particular factors, ............................ [6.640], [6.660]–[6.750] notice of application for leave to, ........ [6.420], [6.430], [6.970]–[6.1010], [6.1030], [10.60]

535

filing of, ... [6.420], [6.430], [6.970], [6.980], [6.1000], [6.1030] form and content of, .......... [6.970], [6.980] out of time, where, ............ [6.420], [6.430], [6.980], [6.1030] written case in support, .... [6.970], [6.980], [6.1000] procedure, ...... [6.330], [6.360], [6.420], [6.430], [6.970]–[6.1100] application for leave to appeal, ..... [6.420], [6.430], [6.970]–[6.1010], [6.1030]–[6.1070] — see also “application for leave to” above flow chart of, ..................................... [6.360] hearing of appeal, ...... [6.1080]–[6.1100] — see also “hearing of” above overview, ............................................ [6.970] supervision order made because of mental impairment of accused, where, ........................................................ [6.330] Registrar of Criminal Appeals, role of, ....... [6.970], [6.1000], [6.1010], [6.1040], [6.1060]–[6.1080] right of, subject to leave, ........... [2.170], [6.10], [6.20], [6.610], [6.620] consent by appellant to sentence not waiver of, ..................................... [6.620] “sentence” defined, ................................. [6.610] statutory right of, subject to leave, ...... [2.170], [6.10], [6.20], [6.610], [6.620] consent by appellant to sentence not waiver of, ..................................... [6.620] stay of sentence during, whether, ........ [1.710], [6.1020] supervision order made because of mental impairment of accused, where, ........................................................ [6.330] warning by court about sentence, ....... [1.670], [6.630] Appeal to Court of Appeal by DPP against sentence imposed at trial on indictment — see also Sentencing breach of undertaking to assist by convicted person, where, ........... [6.1210]–[6.1250] disposition powers of court on successful, ...................................................... [6.1240] meaning of undertaking to asist, . [6.1210] procedure, ........................................ [6.1250] right to appeal, ................................ [6.1220] test to determine appeal, ............... [6.1230] common law principles, ....... [6.1140]–[6.1160], [10.220], [10.230] double jeopardy, .............. [6.1140], [6.1150] impact of Criminal Procedure Act 2009 (Vic) on, ................................ [6.1150], [6.1160] residual discretion, .......................... [6.1145] determination of, ..... [1.720], [6.1120], [6.1130], [6.1145]–[6.1180], [6.1230], [6.1240] breach of undertaking to assist by convicted person, test where, ...................................................... [6.1230] Commonwealth offender, where, . [6.1130]

536

Criminal Appeals and Reviews in Victoria

Appeal to Court of Appeal by DPP against sentence imposed at trial on indictment — cont conduct of Crown at trial or sentencing hearing, relevance of, .............. [6.1170] disclosure of error but sentence not manifestly inadequate, where, ...................................................... [6.1160] disposition powers of court, ........ [6.1180], [6.1240] double jeopardy not taken into account, ...... [6.1120], [6.1130], [6.1150], [6.1160], [6.1180], [6.1240] increase in sentence prohibited, whether, ........................................................ [1.720] residual discretion not to interfere with sentence even where error, .... [6.1145], [6.1150] test for, .............................. [6.1130], [6.1230] disposition powers of court, ............... [6.1180], [6.1240] distinguished from appeal by convicted person, ........ [6.1120], [6.1140], [6.1150] procedure, .. [6.330], [6.1190], [6.1200], [6.1250] admissibility of new evidence, ..... [6.1200] breach of undertaking to assist by convicted person, where, ........ [6.1250] notice of appeal, signing, filing and service of, ................... [6.1190], [6.1250] supervision order made because of mental impairment of accused, where, ........................................................ [6.330] written case by respondent, .......... [6.1250] written case in support, . [6.1190], [6.1250] revocation of non-custodial supervision order made because of mental impairment of accused, where, ..................... [6.340] right of, ....................... [1.760], [3.450], [6.1120], [6.1140]–[6.1150], [6.1220] breach of undertaking to assist by convicted person, where, ........ [6.1220] caution in exercise of, at common law, ...................................... [6.1140], [6.1145] leave not required, ............ [1.760], [6.1120] public interest constraint on, ....... [6.1120], [6.1140]–[6.1150] “sentence” defined, ................................. [6.610] supervision order made because of mental impairment of accused, where, ........................................................ [6.330] test for determination of, ....... [1.890], [6.1130], [6.1160], [6.1230], [10.180], [10.230] breach of undertaking to assist by convicted person, where, ........ [6.1230] error in sentence first imposed and different sentence should be imposed, ...................................... [6.1130], [10.180] principles in House v The King, ...... [1.890], [6.1130], [6.1160], [10.230] unconditional release of person found not guilty because of mental impairment, where, ........................................... [6.320] when appropriate, .... [1.890], [6.1130]–[6.1160] common law principles, . [6.1140]–[6.1160]

disclosure of error even if sentence not manifestly inadequate, ............ [6.1160] impact of Criminal Procedure Act 2009 (Vic), ............................................ [6.1150] manifest inadequacy of sentence insufficent in itself, ... [6.1140], [6.1145] principles in House v The King, ...... [1.890], [6.1130], [6.1160], [10.230] Appeal to Federal Court — see also Federal Court of Australia bail, concerning, ........................... [8.30], [8.600] generally, ........................................ [8.10]–[8.600] indictable proceedings, from, .... [8.10]–[8.600] — see also Appeal to Federal Court from indictable proceedings interim judgments and decisions, concerning, ............................................ [8.30], [8.600] summary proceedings, from, ...... [8.10], [8.30], [8.630]–[8.810] — see also Appeal to Federal Court from summary proceedings Appeal to Federal Court from indictable proceedings — see also Federal Court of Australia abandonment of appeal against conviction or sentence, ........................ [8.430], [8.470] costs where, ........................................ [8.470] acquittal of count in indictment (no case finding), against, by DPP, .......... [8.40], [8.60], [8.480]–[8.500] Crown’s right of, subject to leave, .. [8.60], [8.480] disposition powers of Federal Court, ........................................................ [8.500] test to determine, .............................. [8.490] acquittal on ground of mental illness, against, .............................. [8.40], [8.120]–[8.140] disposition powers of Federal Court, ........................................................ [8.140] test to determine, .............................. [8.130] application for leave to appeal against conviction, ...................... [8.150]–[8.250] applicable law, ................................... [8.180] extension of time for, ....................... [8.200] flow chart of procedure, .................. [8.160] hearing without oral argument (on the papers), ............ [8.170], [8.230], [8.240] notice of, filing of, and accompanying documents, .................................. [8.170] oral hearing, ....................................... [8.230] service of, ........................................... [8.210] submissions, content, filing and service of, ........................................................ [8.240] time for commencement of, ........... [8.190], [8.200] who hears, .......................................... [8.220] withdrawal of, ................................... [8.250] basic circumstances where Full Court can hear ................................................. [8.50] conviction, against, ......... [8.40], [8.60]–[8.110], [8.150]–[8.470]

Index Appeal to Federal Court from indictable proceedings — cont abandonment of, ................. [8.430], [8.470] appeal book, content, filing, service and settlement of, ................ [8.370], [8.420] appellant’s attendance at hearing, . [8.450] appellant’s outline of submissions and chronology, filing of, .................. [8.390] appellant’s reply, filing and service of, ........................................................ [8.410] application for leave to, ..... [8.150]–[8.250] — see also “application for leave to appeal against conviction” above application for stay of relevant judgment until hearing of, .......................... [8.360] bail pending, ...................................... [8.260] consent of Federal Attorney-General as alternate basis of, ....................... [8.110] costs, whether, ................................... [8.470] cross-appeal, ...................................... [8.350] disposition powers of Federal Court, ............................................ [8.90], [8.100] grounds of, ........................................... [8.80] hearing of, ............. [8.270], [8.280], [8.320], [8.380], [8.450], [8.460] — see also “hearing of appeal against conviction” below leave, requirement of, ........... [8.60], [8.70], [8.150]–[8.250] notice of appeal, content, filing and service of, ......... [8.290]–[8.310], [8.330] objection to competency of, ............ [8.340] question of law alone, where, ......... [8.60], [8.70] report of trial judge, ......................... [8.440] respondent’s outline of submissions and chronology, filing of, .................. [8.400] test to determine, .................. [8.90], [8.110] costs, ........................................................... [8.470] “eligible primary court” defined, ........... [8.50] hearing of appeal against conviction, . [8.270], [8.280], [8.320], [8.380], [8.450], [8.460] additional evidence at, notice of, ... [8.380] appellant’s attendance at hearing, . [8.450] date for, ............................................... [8.320] flow chart of procedure, .................. [8.280] nature of, ............................................ [8.460] “indictable primary proceedings” defined, .......................................................... [8.50] leave required, where, ................. [8.60], [8.70], [8.150]–[8.250], [8.510], [8.540], [8.560], [8.570] conviction, against, ................ [8.60], [8.70], [8.150]–[8.250] — see also “application for leave to appeal against conviction” above generally, .................................. [8.60], [8.70] sentence, against, by convicted person, .. [8.60], [8.510], [8.540], [8.560], [8.570] sentence, against, by DPP, . [8.560], [8.570] no case finding, against, by DPP, .......... [8.40], [8.60], [8.480]–[8.500] Crown’s right of, subject to leave, .. [8.60], [8.480]

537

disposition powers of Federal Court, ........................................................ [8.500] test to determine, .............................. [8.490] order or determination or finding of single judge, from, ................................... [8.40] question of law alone, concerning, ........ [8.60], [8.70], [8.510], [8.560] sentence, against, .......................... [8.40], [8.60], [8.290]–[8.470], [8.510]–[8.590] abandonment of, ................. [8.430], [8.470] appeal book, content, filing, service and settlement of, ................ [8.370], [8.420] appellant’s attendance at hearing, . [8.450] appellant’s outline of submissions and chronology, filing of, .................. [8.390] appellant’s reply, filing and service of, ........................................................ [8.410] application for leave to, ..... [8.540], [8.560] application for stay of relevant judgment until hearing of, .......................... [8.360] case study of, ..................................... [8.550] costs, whether, ................................... [8.470] cross-appeal, ...................................... [8.350] DPP, by, ................................. [8.560]–[8.590] disposition powers of Federal Court, .......................................... [8.530], [8.590] hearing of, .............. [8.320], [8.380], [8.540] leave, requirement of, ......... [8.60], [8.510], [8.540], [8.560], [8.570] notice of appeal, content, filing and service of, ......... [8.290]–[8.310], [8.330] objection to competency of, ............ [8.340] procedure generally, ......................... [8.540] question of law alone, where, ......... [8.60], [8.510], [8.560] report of trial judge, ......................... [8.440] respondent’s outline of submissions and chronology, filing of, .................. [8.400] test to determine, ................ [8.520], [8.580] Appeal to Federal Court from summary proceedings — see also Federal Court of Australia acquittal, against, by DPP, ....... [8.640]–[8.660], [8.730]–[8.750], [8.810] application for leave for, ................. [8.650] case study, .......................................... [8.810] disposition powers of Federal Court, ........................................................ [8.750] question of law alone, where, ........ [8.650] right of, ..... [8.640], [8.650], [8.660], [8.730] test to determine, .............................. [8.740] case study, ................................................. [8.810] conviction, against, ................... [8.640]–[8.660], [8.670]–[8.690], [8.810] application for leave for, ... [8.650], [8.670] case study, .......................................... [8.810] disposition powers of Federal Court, ........................................................ [8.690] question of law alone, where, ........ [8.650] right of, ................... [8.640], [8.650], [8.670] test to determine, .............................. [8.680] disposition powers of Federal Court, . [8.690], [8.720], [8.750]

538

Criminal Appeals and Reviews in Victoria

Appeal to Federal Court from summary proceedings — cont “judgment” defined, ................. [8.640], [8.670] jurisdiction, ..................... [8.30], [8.630], [8.640] procedure for, .............................. [8.760]–[8.800] appeal book, ....................................... [8.760] applicable laws, ................................. [8.790] evidence, ............................................. [8.800] right to attend hearing, .................... [8.780] time limit, ........................................... [8.770] question of law alone, where, ............... [8.650] rehearing, as, .............................. [8.640], [8.800] right of, ........... [8.640]–[8.660], [8.670], [8.700], [8.730] sentence, against, ...................... [8.640]–[8.660], [8.700]–[8.720] disposition powers of Federal Court, ........................................................ [8.720] question of law aloine, where, ....... [8.650] right of, ................... [8.640]–[8.660], [8.700] test to determine, .............................. [8.710] who can appeal, .......... [8.660], [8.670], [8.700], [8.730] Appeal to Supreme Court — see also Supreme Court of Victoria appeal by DPP against decision on application by DPP for revocation of bail pending appeal against conviction and sentence from Magistrates’ Court to County Court, to, .................. [4.220] appeal by DPP against decision on application by DPP for revocation of bail pending appeal against sentence only from Magistrates’ Court to County Court, to, ....................... [4.220] appeal by DPP against grant of bail to, ........................................................ [3.290] appeal by DPP against grant of bail pending appeal against conviction and sentence from Magistrates’ Court to County Court, to, ....................... [4.210] appeal by DPP against grant of bail pending appeal against sentence only from Magistrates’ Court to County Court, to, .................................................. [4.210] appeal from Children’s Court against “final order” on question of law to Judicial Reviews and Appeals List of Trial Division, ........................ [3.570], [3.590], [7.10]–[7.240], [7.520]–[7.710], [7.940], [7.960], [7.980] — see also Appeal from Children’s Court appeal from decision of President of Children’s Court to, ....... [3.20], [3.220] appeal from Magistrates’ Court against “final order” on question of law to Judicial Reviews and Appeals List of Trial Division, ............ [4.30], [4.480], [4.500], [7.10]–[7.240], [7.520]–[7.710], [7.920], [7.940], [7.960], [7.980] — see also Appeal from Magistrates’ Court

Appellate advocacy addressing opponent’s arguments, ....... [10.20] addressing and dealing with questions / directions / responses from bench, ....... [10.20], [10.300], [10.310], [10.350], [10.360] appeal to Court of Appeal against conviction and sentence, .. [6.640], [6.660]–[6.750], [6.980], [10.10], [10.40]–[10.310] — see also Appeal to Court of Appeal answering questions from bench, ...................................................... [10.310] determination of leave to appeal on the papers, where, ............................ [10.90] drafting grounds, . [6.640], [6.660]–[6.750], [6.980], [10.40], [10.120], [10.160], [10.170], [10.190]–[10.290] — see also “drafting grounds of appeal to Court of Appeal” below drafting written case, ...................... [10.10], [10.240]–[10.290] — see also “drafting written case for appeal to Court of Appeal” below grounds of appeal against conviction, . [10.100]–[10.170] — see also “grounds of appeal against conviction to Court of Appeal” below grounds of appeal against sentence, ............. [6.640], [6.660]–[6.750], [6.980], [10.180]–[10.230] — see also “grounds of appeal against sentence to Court of Appeal” below notice of application for leave to appeal, ........................................................ [10.60] note potential appeal grounds and supporting evidence, ................. [10.50] oral hearing for leave to appeal (if not “on the papers”), ................. [10.60], [10.90] preparing oral submissions based on written case, .............................. [10.300] resource materials, ............................ [10.50] tests to determine leave applications, ....... [10.70], [10.80] — see also “tests to determine leave applications to Court of Appeal” below appeal to High Court, ............ [10.10], [10.330], [10.340] — see also Appeal from Court of Appeal to High Court generally, .......................................... [10.330] oral argument, ................................. [10.340] approach to take, generally, ................... [10.10] art of persuasion, as, ... [0.30], [10.50], [10.240] drafting grounds of appeal to Court of Appeal, ............ [6.640], [6.660]–[6.750], [6.980], [10.40], [10.120], [10.160], [10.170], [10.190]–[10.290] clarity, ................ [10.240], [10.260], [10.290] concluding paragraph, ................... [10.280] consolidating information, ............ [10.240] conviction, against, ........ [10.120], [10.160], [10.170] errors in, ........................................... [10.290] identifying and analysing issues, ...................................................... [10.270]

Index Appellate advocacy — cont minimum requirements, ................ [10.250] sentence, against, .. [6.640], [6.660]–[6.750], [6.980], [10.190]–[10.230] structure, ........................................... [10.250] drafting written case for appeal to Court of Appeal, ......... [10.10], [10.240]–[10.290] clarity, ................ [10.240], [10.260], [10.290] concluding paragraph, ................... [10.280] consolidating information, ............ [10.240] errors in, ........................................... [10.290] identifying and analysing issues, ...................................................... [10.270] minimum requirements, ................ [10.250] structure, ........................................... [10.250] focus of, ......... [10.20], [10.30], [10.80], [10.230] generally, .................................... [10.10]–[10.370] grounds of appeal against conviction to Court of Appeal, .................. [10.100]–[10.170] preparing arguments about, ........ [10.120], [10.160], [10.170] substantial miscarriage of justice, ....... [10.100], [10.110], [10.130]–[10.170] unreasonable or unsupportable jury verdict, ........................ [10.100]–[10.120] grounds of appeal against sentence to Court of Appeal, .................. [10.180]–[10.230] consideration of principles in House v The King, ............................................ [10.230] error in first sentence and different sentence should be imposed, ...................................... [10.180], [10.190] manifestly excessive sentence, ..... [10.190], [10.200] preparation of arguments about, ...................................... [10.190]–[10.230] identifying issues, .................................... [10.20] importance of, ............................................ [0.30] interlocutory appeals to Court of Appeal, .......... [10.320] — see also Interlocutory appeal to Court of Appeal oral argument on, ........................... [10.320] knowledge of facts of trial, .................... [10.30] knowledge of law supporting grounds of appeal / application, . [10.30], [10.330] knowledge of procedural rules, ........... [10.30], [10.330] opening statement, .................................. [10.20] perspective of decision-maker, .............. [10.20] preparation generally, ............... [10.10], [10.20] tests to determine leave applications to Court of Appeal, ...................... [10.70], [10.80] conviction, against, ........................... [10.70] sentence, against, .............................. [10.80] trial advocacy distinguished, ... [10.20], [10.30] wants and needs of appellate court, ... [10.20], [10.300], [10.310] wellbeing and, ........................ [10.350]–[10.370] dealing with negative responses from bench, ......................................... [10.360] managing anxiety, ........................... [10.370]

539

Application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court “administration of justice” offence defined, ...................................................... [6.1640] approach by DPP to, ............................. [6.1700] determination of, .................. [6.1520], [6.1590], [6.1640]–[6.1670] disposition powers of Court of Appeal, ...................... [6.1520], [6.1590], [6.1670] application based on administration of justice offence, test where, ...... [6.1660] application based on fresh and compelling evidence, test where, ............... [6.1650] application based on tainted acquittal, test where, ......................................... [6.1640] double jeopardy, limitation on rules relating to, .................................. [1.780], [6.1520] DPP Prosecutions Policies, Policy 37, “Retrials and Reinvestigations after Acquittals”, ..... [6.1550], [6.1600], [6.1640], [6.1650], [6.1700] election to prosecute by DPP if successful, ...................................................... [6.1680] “fresh”/“compelling” evidence defined, ...................................................... [6.1650] generally, .............. [0.40], [1.780], [6.10], [6.30], [6.1520]–[6.1700] grounds of, ............................. [6.1520], [6.1590], [6.1640]–[6.1660], [6.1700] acquittal as result of administration of justice offence, .......... [6.1520], [6.1640], [6.1660] acquittal verdict tainted, ............... [6.1520], [6.1640] fresh and compelling evidence, .. [6.1520], [6.1650], [6.1700] hearing of, ............................................... [6.1610] limitation on rules relating to double jeopardy, ....................... [1.780], [6.1520] new evidence post–trial, necessity for, ...................... [6.1520], [6.1540], [6.1550] new trial authorised by Court of Appeal after, and prohibitions at, ................. [6.1690] notice of, .................................. [6.1590]–[6.1630] content of, ......................................... [6.1590] extension of time for filing of, ...... [6.1620] filing of, ............ [6.1600], [6.1620], [6.1630] service on respondent accused of, ...................................................... [6.1610] signing of, ......................................... [6.1600] police reinvestigation of offence of which person acquitted, circumstances where, ......................... [6.1540]–[6.1560] “reinvestigate” defined, ................. [6.1540] test for authorising, ........................ [6.1550] who may apply for authorisation by DPP, ...................................................... [6.1540] written authorisation by DPP not required, where, ....... [6.1540], [6.1560] written authorisation by DPP required, where, ......................................... [6.1540] procedure, ................ [6.1530]–[6.1630], [6.1700]

540

Criminal Appeals and Reviews in Victoria

Application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court — cont bail, presumption of, where respondent accused in custody for retrial offence, ...................................................... [6.1580] consideration of application to Supreme Court for order prohibiting publication of any report of application, ................................ [6.1600] discontinuation of proceedings, where, ...................................................... [6.1630] filing of new indictment by DPP after reinvestigation, ......... [6.1570], [6.1700] flow chart of, ................................... [6.1530] notice of application, . [6.1590]–[6.1630] — see also “notice of” above police reinvestigation, .... [6.1540]–[6.1560] protection of respondent accused, ..... [6.1520], [6.1670], [6.1690] permanent stay of charge if application unsuccessful, ............................. [6.1670] prohibitions on prosecutor at new trial, ...................................................... [6.1690] equest by police for, .............................. [6.1700] right of, ............ [6.10], [6.30], [6.1520], [6.1590] scope of, ............................ [6.1520], [6.1590] right of respondent accused to appear at hearing of, ................................. [6.1610] “tainted” defined, .................................. [6.1640] Ashley-Venne reforms (2011) — see Case management Attorney-General Federal, .......................... [1.920], [8.110], [9.320] consent of, as alternate basis of appeal by offender to Federal Court against conviction on indictable proceeding, ........................................................ [8.110] intervention in appeal involving interpretation of Constitution by, ........................................................ [1.920] intervention in matters before High Court by, .................................... [1.920], [9.320] Standing Committee of Attorneys–General, Harmonisation of Criminal Appeals Working Group, Harmonisation of Criminal Appeals Legislation, Discussion Paper (2010), ................................. [0.30] State, .. [1.920], [1.990], [2.150], [3.180], [3.630], [6.1720], [6.1730], [9.320] appeal against supervision order imposed by Children’s Court by, ........... [3.180], [3.630] appeal involving interpretation of Constitution, intervention in, .... [1.920] appeal to Supreme Court involving application of Charter of Human Rights and Responsibilities Act 2006 (Vic), intervention in, ........................... [1.920] guideline judgment by Court of Appeal, role in, ........................................ [6.1330]

intervention in matters before High Court by, .................................... [1.920], [9.320] notice to, before declaration by Supreme Court / Court of Appeal of inconsistent interpretation of Charter of Human Rights and Responsibilities Act 2006 (Vic), .................................... [2.150] notice to, of referral to Supreme Court / Court of Appeal of question of law about application of/ interpretion of statutory provision in accordance with Charter of Human Rights and Responsibilities Act 2006 (Vic), .. [2.160] petition for mercy and role of, ...... [1.990], [6.1720], [6.1730]

B Bail appeal against decision about, and relevance of Charter of Human Rights and Responsibilities Act 2006 (Vic), .. [2.200] appeal by DPP to Supreme Court / Court of Appeal against order for, grounds and procedure for, ............... [3.290], [4.210] appeal from Court of Appeal to High Court, before and after grant of special leave to, .................................................. [9.330] appeal to Federal Court concerning, ..... [8.30], [8.600] application / appeal by DPP to revoke, .......................................... [3.300], [4.220] application / appeal by DPP to vary, .. [3.280] application for, and relevance of Charter of Human Rights and Responsibilities Act 2006 (Vic), .................................... [2.200] application to Children’s Court for, pending appeal against conviction and sentence, ...................................... [3.250] federal criminal matters, in, ................... [1.910] further application to appellate court for, after refusal by Children’s Court, pending appeal against conviction and sentence, ...................................... [3.260] inherent jurisdiction of Supreme Court to hear appeal by child against refusal of magistrate to grant or vary, procedure for, ................................... [3.270], [3.280] pending appeal on question of law to Supreme Court, .......................... [7.240] pending appeal to Court of Appeal against imposition by County Court of detention (where none originally imposed) following appeal from Magistrates’ Court, ....... [4.310]–[4.320] pending appeal to County Court against conviction and sentence / sentence only by Magistrates’ Court, ............................ [4.170]–[4.220], [4.240] appeal to Supreme Court / Court of Appeal by DPP against grant of, ........................................................ [4.210]

Index Bail — cont application by DPP for revocation of, ........................................................ [4.220] application to Magistrates’ Court for, ........................................................ [4.170] application to Supreme Court, County Court, bail justice or magistrate for variation of, ................................. [4.200] further application to Supreme Court or County Court for, where refused or revoked, ....................................... [4.180] inherent jurisdiction of Supreme Court to grant on appeal from refusal of magistrate, ................................... [4.190] inherent jurisdiction of Supreme Court to vary, .............................................. [4.200] ultimate refusal of, consequence of, ........................................................ [4.190] pending appeal to Court of Appeal against conviction at trial on indictment, .......................................... [6.540]–[6.560] pending appeal to Federal Court against conviction on indictable proceeding, ........................................................ [8.260] pending determination of appeal under former Criminal Appeal Act 1914 (Vic), .......................................... [1.530], [1.550] pending new trial after appeal to Court of Appeal against conviction at trial on indictment, .................................. [6.570] pending trial, inherent jurisdiction of Supreme Court to grant, ........... [3.270] presumption of, where accused in custody for retrial offence, ........................... [6.1580] revocation of, ................ [3.300], [4.180], [4.220] variation of, ................................. [3.280], [4.200]

C Case management appeal against conviction imposed at trial on indictment, before hearing for, ........................................................ [6.500] Ashley-Venne reforms (2011), . [1.730]–[1.770], [7.730] new procedures in Court of Appeal of Victoria mirror much of, ........... [7.730] challenges/ problems before 2011 in, . [1.730], [1.740] Criminal Appeal Act 1914 (Vic), subsequent importance of, for contemporary Court of Appeal in, ................... [1.450] English criminal appeals model, ........... [1.750] inter-agency co-operation, ...................... [1.730] prerogative writs, modern statutory changes to, and contemporary importance for, ........................................................ [1.210] Victorian reforms, ......... [0.10], [1.760], [1.770], [7.730] amendments to Supreme Court Rules, ........................................................ [1.760] creation of office of judicial registrar, ........................................................ [1.760]

541

new procedures in Court of Appeal of Victoria, ........................................ [7.730] result of, .............................................. [1.770] specific reforms, ................................ [1.760] Case stated — see also Referral of question of law application only to question of law, ... [6.1400] application to trial judge for, ............... [6.1390] availablility of, .............. [0.20], [1.910], [6.1390] federal criminal matters, whether for, ........................................................ [1.910] concern about effect on juries of, after commencement of trial, ............ [1.690] costs on, ..................................... [1.700], [6.1460] County Court, by, on appeal, to Court of Appeal, ........................... [4.330]–[4.350] considerations, ................................... [4.330] form of interlocutory appeal, as, ... [4.330] purpose of, ......................................... [4.330] refusal by judge to reserve question of law, ................................................ [4.340] “state a case”, meaning of and procedure for, ................................................. [4.350] who may request, ............................. [4.330] derivation of, .......................................... [6.1390] determination by Court of Appeal of question of law arising from appeal to County Court or Trial Division of Supreme Court from Children’s Court, for, .......................................... [3.410]–[3.430] entry of judgment on Children’s Court record, .......................................... [3.430] form of interlocutory appeal, as, ... [3.410] purpose of, ......................................... [3.410] question of law reserved, procedure for, ........................................................ [3.430] refusal to reserve question of law, consequences of, ......................... [3.420] who may request, ............................. [3.410] examples of, ............................................ [6.1470] Federal Court, for, ................................... [8.610] generally, ...................... [6.10], [6.1390]–[6.1470] governing law, ................ [0.30], [1.700], [2.160] interlocutory appeal, as form of, ......... [3.410], [4.330], [8.610] judicial review distinguished, . [3.580], [4.490] jurisdiction under Criminal Procedure Act 2009 (Vic), ........................................... [6.1390] management by Registrar of Criminal Appeals of, ............... [6.1390], [6.1420], [6.1450] own initiative of trial judge, on, ......... [6.1390] procedure for, . [1.700], [3.410]–[3.430], [4.350], [6.10], [6.1390]–[6.1450] generally, .............................................. [6.10] hearing and determination by Court of Appeal, .......... [3.410]–[3.430], [6.1440], [6.1450] obsolete post-conviction, ................. [1.700] refusal by trial judge or County Court judge on appeal to reserve question of law, where, ................................ [6.1420]

542

Criminal Appeals and Reviews in Victoria

Case stated — cont remittal of judgment and orders to court which reserved question, for entry on record, ........................ [6.1440], [6.1450] reservation of question of law by County Court, on appeal, where, .......... [4.350] trial commenced, where, ............... [6.1410] trial judge states case, procedure and content, ......................... [1.700], [6.1430] purpose of, ................................ [1.700], [6.1390] “question of law”, meaning of, ........... [6.1400] regulation before and after Criminal Procedure Act 2009 (Vic) of, ........ [1.700], [6.1390] reservation of question of law arising before or during prosecution of indictable offence in County Court / Trial Division of Supreme Court for determination by Court of Appeal, ...................................................... [6.1390] reservation of question of law arising on appeal against conviction and sentence in Magistrates’ Court by County Court for determination by Court of Appeal, .......... [4.330]–[4.350], [6.1390] similarity of procedure for referral of question of law about application / interpretation of Charter of Human Rights and Responsibilities Act 2006 (Vic) to procedure under Criminal Procedure Act 2009 (Vic) for, ..... [2.160] “state a case”, meaning of, .................... [4.350] test for, ..................................................... [6.1390] trial judge, by, ......................................... [6.1430] unavailable, where, ............................... [6.1400] Categories of criminal appeals and reviews appeal generally, ........... [0.20], [1.790], [1.800], [1.890], [3.580], [10.230] defined, ................................................. [0.20] examples of, ......................................... [0.20] judicial review distinguished from, .............................. [0.20], [1.800], [3.580] meanings of, ............. [0.20], [1.790], [1.800] no common law right of convicted person to appeal conviction or sentence, .......................................................... [0.20] no common law right of Crown to appeal acquittal or sentence, ................... [0.20] principles in House v The King, ...... [1.890], [10.230] appeal in federal criminal matters, ...... [1.910] application / referral by Crown to Court of Appeal, ............... [0.20], [1.800], [1.990] examples of, ........................... [0.20], [1.800] petition for mercy, by, ......... [0.20], [1.800], [1.990] — see also Petition for mercy retrial of person acquitted, for, . [1.800] — see also Application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court decisions unable to be appealed or reviewed, .... [1.930], [1.940], [4.480], [7.20], [7.40]

decisions made at committal, ......... [1.950] [4.480], [7.20], [7.40] prosecution decisions made by DPP, ........................................................ [1.940] generally, .......................... [0.20], [1.790]–[1.860] judicial review, .... [0.20], [1.800], [3.580] — see also Judicial review appeal distinguished from, .............. [0.20], [1.800], [3.580], [6.1510] case stated distinguished, ................ [3.580] meaning of, .......................................... [0.20] purpose of, ........................................... [0.20] referral of question of law to appellate court by DPP distinguished, .... [3.580] statutory appeal rights distinguished from, ............................................... [0.20] statutory appeal rights, ................ [0.10], [0.20], [1.800]–[1.850], [6.1510] creation of, ................................ [0.10], [0.20] examples of, ........................... [0.20], [1.800] hearing de novo, ................... [0.20], [1.850] interlocutory appeal, ..... [1.800], [1.830] — see also Interlocutory appeal to Court of Appeal judicial review distinguished from, .......................................... [0.20], [6.1510] purpose of, ........................................... [0.20] rehearing, ................................ [0.20], [1.840] strict appeal (appeal stricto sensu), .............................. [0.20], [1.820], [1.830] statutory right to request opinion from appellate court, .............. [0.20], [1.800], [1.860], [1.990] case stated procedure, .... [0.20], [1.800] — see also Case stated examples of, ........................... [0.20], [1.800] petition for mercy, ... [1.800], [1.990] — see also Petition for mercy purpose of, ......................................... [1.860] reservation and referral of question of law, ........... [0.20], [1.800], [1.860] — see also Referral of question of law to appellate court types of decisions able to be appealed, ................ [0.20], [1.800], [1.820], [1.830] Charter of Human Rights and Responsibilities Act 2006 (Vic) — see also Human rights annual reports about, by Victorian Equal Opportunity and Human Rights Commission, ................................. [2.10] application of, .................... [2.10], [2.30]–[2.50], [2.100]–[2.140], [2.160]–[2.320], [5.450], [6.1580] bail application/appeal, to, ............. [2.200] bail, presumption of, where accused in custody for retrial offence, and, ...................................................... [6.1580] civil proceedings, to, ........................ [2.280] coercive powers order, to, ............... [2.310] criminal appeals and reviews generally,

Index Charter of Human Rights and Responsibilities Act 2006 (Vic) — cont to, .................. [2.170]–[2.320] — see also “engagement in criminal appeals and reviews of” below interlocutory appeals, whether to, .......................................... [2.190], [5.450] Momcilovic v The Queen, .................... [2.10], [2.100]–[2.130], [2.250], [2.260], [2.320] referral to Supreme Court / Court of Appeal of question of law about, ............................................ [2.10], [2.160] relationship between ss 7(2) and 32(1), ............................ [2.100]–[2.140], [2.250] right to legal assistance by Victoria Legal Aid, whether to, ........... [2.230]–[2.250] arguments under, ....................................... [2.10] balance between rights and interests of accused / convicted person and rights and interests of public in effective criminal justice system / social policy, .................. [2.10], [2.70], [2.100], [2.310] operation of, and relationship between, ss 7(2) and 32(1) of, ....... [2.10], [2.100] basis of, .............................. [2.10], [2.60], [2.170] breach of, ..................................................... [2.80] commencement of, .................................... [2.20] common law rights continue to apply alongside, ....................................... [2.10] compliance (apparent) of procedures and requirements in appeal provisions under Criminal Procedure Act 2009 (Vic) with, .................................... [2.170] Crown in right of Victoria bound by, .... [2.40] declaration by Supreme Court / Court of Appeal of inconsistent interpretation, .................. [2.10], [2.70], [2.120], [2.150] effect of, .............................................. [2.150] notice to Attorney–General and Victorian Equal Opportunity and Human Rights Commission before, ................... [2.150] Department of Justice and Regulation, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 Final Report (2015), recommendations, ......... [2.10], [2.40], [2.50], [2.60], [2.90], [2.140]–[2.160] breach of charter, consequences of, .............................................. [2.40], [2.90] clarity about “functions of a public nature”, .......................................... [2.50] clarity about “substantive compatibility”, .......................................................... [2.50] declaration of inconsistent interpretation, ........................................................ [2.150] definitions of “compatibility” and “incompatibility”, ......................... [2.50] extension of available remedies, ..... [2.40], [2.90] placement of s 7(2), ............................ [2.60] referral by County Court to Supreme Court / Court of Appeal of question

543

of law about application of Charter, ........................................................ [2.160] relationship between ss 32(1) and 7(2), ........................................................ [2.140] statutory interpretation, ................... [2.140] double punishment for same act prohibited under, ........................................... [6.870] effect of, ......................................... [2.10], [2.320] engagement in criminal appeals and reviews of, ........................... [0.10], [0.30], [0.60], [2.170]–[2.320], [5.450], [6.1580] — see also “relevance to criminal appeals and reviews of” below acting incompatibly with human right, ........................................................ [2.220] appeal against conviction or sentence, ........................................................ [2.190] application for bail/ appeal against bail decision, ....................................... [2.200] coercive powers order, where, ........ [2.310] freedom of expression, ..................... [2.210] interlocutory appeals, whether, ..... [2.190], [5.450] judicial review, .................... [2.190], [2.270] presumption of bail where accused in custody for retrial offence, ..... [6.1580] right against self–incrimination, .... [2.310] right to appeal as substantive human right, ................... [0.10], [2.170], [2.190] right to fair hearing, ........... [2.280]–[2.310] right to fair trial, ............................... [2.250] right to freedom of movement, ...... [2.270] right to legal assistance, ..... [2.230]–[2.250] right to liberty, ................................. [6.1580] right to privacy, ................................. [2.260] scope of, .............................................. [2.180] “function of a public nature”, meaning of, .......................................................... [2.50] general features of, ...................... [2.20]–[2.170] generally, ............................ [1.20], [2.10]–[2.320] Human Rights Certificate to accompany all new Regulations, .......................... [2.10] International Covenant on Civil and Political Rights 1966 (Int) as basis of rights under, ................... [2.10], [2.60], [2.170] interpretation of, costs order by High Court on appeal where important constitutional questions, ........... [9.580] introduction of, ................ [0.30], [2.10], [2.320] Judicial College of Victoria, ........ [1.20], [2.10], [2.50], [2.170], [2.320] Charter of Human Rights Bench Book, ................................ [2.10], [2.50], [2.170] role of, ................................................. [2.320] Victorian Human Rights: Charter Case Collection (2015), ............... [1.20], [2.10] limits of, .. [2.10], [2.40], [2.70], [2.100]–[2.140], [2.200], [2.240]–[2.260], [2.320] express, ................................................. [2.70] general (s 7(2)), ....................... [2.10], [2.70], [2.100]–[2.140], [2.200], [2.240]–[2.260] legality requirement, ............ [2.70], [2.250] Momcilovic v The Queen, .................... [2.10], [2.100]–[2.130], [2.250], [2.260], [2.320]

544

Criminal Appeals and Reviews in Victoria

Charter of Human Rights and Responsibilities Act 2006 (Vic) — cont no power for court to declare statutory provision invalid or strike down statutory provision for incompatibility, .......................................................... [2.40] proportionality principle, .................. [2.70] relationship between ss 7(2) and 32(1), ............. [2.100]–[2.140], [2.250], [2.260], [2.320] mechanisms for dialogue between three arms of government, ................. [2.10], [2.40] no directly enforceable legal rights under, .......................................................... [1.20] origins of, .................................................... [2.10] parliamentary overriding of, how, ......... [2.10] promotion by Victorian Equal Opportunity and Human Rights Commission of, .......................................................... [2.10] proportionality of penalty to offence, .. [6.840] public authority, .. [2.10], [2.30]–[2.50], [2.200], [2.220], [2.240] acting incompatibly with human right unlawful, ........... [2.50], [2.200], [2.220], [2.240] defined, ................................................. [2.50] proper consideration to human rights required by, ........... [2.10], [2.30]–[2.50], [2.200], [2.220] scope of definition, ............... [2.50], [2.240] purpose of, ............. [1.20], [2.10], [2.30], [2.40], [2.320] recognition of right to appeal as fundamental human right by, .............. [0.10], [2.170] referral to Supreme Court / Court of Appeal of question of law about application of/ interpretion of statutory provision in accordance with, ....... [2.10], [2.160], [2.250], [6.1480] example of, ......................... [2.250], [6.1480] notice to Attorney–General and Victorian Equal Opportunity and Human Rights Commission of, ........................... [2.160] similarity to case stated procedure under Criminal Procedure Act 2009 (Vic), ........................................................ [2.160] referral to Supreme Court of question of law about interpretation of, ............... [0.20] relevance to criminal appeals and reviews of, ......... [0.10], [0.30], [0.60], [2.10], [2.70], [2.120], [2.150], [2.170]–[2.320] — see also “engagement in criminal appeals and reviews of” above declaration by Supreme Court / Court of Appeal that statutory provision cannot be interpreted consistently with human right, ...... [2.10], [2.70], [2.120], [2.150] determinations of appeal or review references, ...................................... [2.10] grounds of appeal furthered by provisions, ..................................... [2.10] referral to Supreme Court / Court of

Appeal of question of law about application, .................................... [2.10] right of review of conviction and sentence, ........................................ [2.10] right to appeal as substantive human right, ................... [0.10], [2.170], [2.190] responsibilities under, ............................... [2.10] review of operation of, ............................. [2.10] rights protected by, ........... [0.10], [1.20], [2.10], [2.60], [2.170], [2.200]–[2.220] balancing of, ........................................ [2.10] basis of, ................................... [2.10], [2.170] conflict between, ................................. [2.10] general application, ............................ [2.60] not created ab initio, ............ [2.10], [2.170] right to appeal, ...................... [0.10], [2.170] specific application to criminal proceedings, ......... [1.20], [2.10], [2.60], [2.170], [2.200]–[2.220] right to appeal as substantive human right, .............................. [0.10], [2.170], [2.190] leave to appeal as necessary precondition to, .................................................. [2.170] meaning of, ........................................ [2.170] scope of, ................................ [2.170], [2.190] Statement of Compatibility to accompany all new Bills, ....................................... [2.10] statutory interpretation and, ....... [2.10], [2.70], [2.100]–[2.150], [2.200], [2.250], [2.260], [2.290], [2.310], [2.320] compatibility with human rights (s 32(1)), . [2.10], [2.100]–[2.140], [2.200], [2.260], [2.290], [2.310] declaration by Supreme Court / Court of Appeal of inconsistent interpretation, .................. [2.10], [2.70], [2.120], [2.150] extrinsic aids to, .................. [2.100], [2.320] Momcilovic v The Queen, .................... [2.10], [2.100]–[2.130], [2.250], [2.260], [2.320] relationship between ss 32(1) and 7(2), ............. [2.100]–[2.140], [2.250], [2.260], [2.320] traditional rules continue to apply alongside, .......... [2.10], [2.100]–[2.130], [2.250], [2.260] summary dismissal of application for leave to appeal conviction inconsistent with, ........................................................ [1.660] value of, ......................................... [2.10], [2.320] “Victoria Police”, meaning of, ................. [2.50] Children’s Court of Victoria appeal from — see Appeal from Children’s Court Criminal Division, ..................................... [3.20] Family Division, ......................................... [3.20] judicial review of decision of, .... [3.580] — see also Judicial review jurisdiction of, .................... [0.30], [3.20], [3.90] criminal matters, ......... [0.30], [3.20], [3.90] “protection” matters, .......................... [3.20] Koori Court (Criminal Division), ............ [3.20] magistrate, matters heard by, .................. [3.20]

Index Children’s Court of Victoria — cont place in hierarchy of Victorian courts, . [1.870] powers of, ................................................... [3.20] President of, .................... [3.20], [3.100], [3.150] appeal from decision of, ..... [3.20], [3.100], [3.150] matters heard by, ................................ [3.20] status of, ............................................... [3.20] Registrar, role of, ...................................... [3.220] rehearing, application for, where sentence imposed in absence of accused child, ........................................................ [3.200] Commonwealth Office of Public Prosecutions — see also Victorian Director of Public Prosecutions (DPP) appeal against acquittal by, ........ [0.20], [6.30], [6.1520], [8.40], [8.60], [8.480]–[8.500], [8.640]–[8.660], [8.730]–[8.750], [8.810], [9.70] Court of Appeal to High Court, whether from, ... [9.70] — see also Appeal from Court of Appeal to High Court indictable proceedings to Federal Court, where no case finding, from, .... [8.40], [8.60], [8.480]–[8.500] — see also Appeal to Federal Court from indictable proceedings infringement of double jeopardy principles, as, ................................ [9.70] not allowed, where, ............... [0.20], [6.30], [6.1250], [9.70] summary proceedings to Federal Court, from, ... [8.640]–[8.660], [8.730]–[8.750], [8.810] — see also Appeal to Federal Court from summary proceedings appeal against bail order to Supreme Court / Court of Appeal by, ..... [3.290], [4.210] appeal to Federal Court against finding of no case in indictable proceeding by, ....... [8.40], [8.60], [8.480]–[8.500] — see also Appeal to Federal Court from indictable proceedings appeal to Federal Court against sentence imposed at indictable proceeding by, .... [8.560]–[8.590] — see also Appeal to Federal Court from indictable proceedings appeal to Supreme Court against decision on application by DPP for revocation of bail pending appeal against conviction and sentence from Magistrates’ Court to County Court by, ................... [4.220] Guidelines and Directions Manual, “Appeals” (2014), ........................... [1.760], [6.1120] referral of question of law to Federal Court by, .................................................. [8.620] role in federal criminal matters of, ....... [1.910] Costs abandonment of appeal to Federal Court against conviction or sentence on indictable proceeding, where, .. [8.470]

545

appeal from Children’s Court, . [3.590], [7.10], [7.660], [7.700] appeal from Court of Appeal to High Court, hearing, of, .................................. [9.580] appeal from Magistrates’ Court, .......... [4.500], [7.10], [7.660], [7.700] appeal to Court of Appeal against conviction at trial on indictment, ............... [6.580] appeal to Federal Court against conviction or sentence on indictable proceeding, whether, ....................................... [8.470] case stated, on, ......................... [1.700], [6.1460] entitlement to, of person acquitted on appeal, for appearance at hearing of referral of question of law by DPP to Court of Appeal, ........................... [3.440], [4.360] federal criminal matters, in, ................... [1.910] former Criminal Appeal Act 1914 (Vic), whether under, ........................... [1.520] interlocutory appeal to Court of Appeal, .......................................... [1.690], [5.470] judicial review of decision of County Court on appeal from Magistrates’ Court, .............................. [7.10], [7.660], [7.700] judicial review of decision of Magistrates’ Court, ................. [7.10], [7.660], [7.700] order for, by High Court on appeal where important constitutional questions involved in interpretation of Charter of Human Rights and Responsibilities Act 2006 (Vic), .................................... [9.580] County Court of Victoria — see also Appeal from County Court appeal by DPP from Magistrates’ Court against sentence, where convicted person breached undertaking to asssist authorities, to, ................. [4.10], [4.430]–[4.470], [4.500], [4.550] — see also Appeal from Magistrates’ Court appeal from Children’s Court to — see Appeal from Children’s Court appeal from decision of judicial registrar in Magistrates’ Court to, .. [4.110], [4.500] — see also Appeal from Magistrates’ Court appeal from Magistrates’ Court against conviction and sentence to, ....... [0.30], [4.10], [4.30], [4.60]–[4.80], [4.130]–[4.270], [4.330]–[4.360], [4.500], [4.530], [4.540], [4.570], [4.580], [6.1390] — see also Appeal from Magistrates’ Court appeal from Magistrates’ Court by convicted person against sentence alone to, ..................... [4.10], [4.30], [4.60], [4.70], [4.120]–[4.270], [4.330]–[4.350], [4.500], [4.530], [4.540], [4.570], [4.580], [6.1390] — see also Appeal from Magistrates’ Court appeal to Court of Appeal against imposition of detention by, ............ [4.270]–[4.320], [4.560] — see also Appeal from County Court

546

Criminal Appeals and Reviews in Victoria

County Court of Victoria — cont appellate jurisdiction, .................. [1.870], [3.20] application by DPP to Court of Appeal for retrial of person acquitted in, ... [0.40], [1.780], [6.10], [6.30], [6.1520]–[6.1700] — see also Application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court case stated by, on appeal, .... [4.330]–[4.350] — see also Case stated judicial registrar, ....................................... [4.110] judicial review by Supreme Court of decision made on appeal from Magistrates’ Court by, ........... [7.10], [7.250]–[7.310], [7.330]–[7.710], [7.920], [7.950], [7.970], [7.990] — see also Judicial review by Supreme Court Koori Court Division, ............................. [4.120] original jurisdiction, ................................ [1.870] place in hierarchy of Victorian courts, . [1.870] Registrar, role of, .......... [3.220], [4.140], [4.260] Victorian Parliament Law Reform Committee, De Novo Appeals to the County Court (2006), ... [1.670], [1.790], [4.60], [4.140] Court of Appeal of Victoria appeal against conviction or sentence to — see Appeal to Court of Appeal by DPP against sentence imposed at trial on indictment; Appeal to Court of Appeal against conviction at trial on indictment; Appeal to Court of Appeal by convicted person against sentence imposed at trial on indictment appeal against finding of unfitness to stand trial at trial on indictment to — see Appeal to Court of Appeal against finding of unfitness to stand trial at trial on indictment appeal against imposition of detention by appellate court, where none originally imposed by Children’s Court, to — see Appeal from Children’s Court appeal against imposition of detention by County Court, where none originally imposed by Magistates’ Court, to — see also Appeal from County Court appeal by accused person against verdict of not guilty because of mental impairment at trial on indictment to — see Appeal to Court of Appeal by accused person against verdict of not guilty because of mental impairment at trial on indictment appeal of interlocutory decision to — see Interlocutory appeal to Court of Appeal appeal to High Court from — see Appeal from Court of Appeal to High Court application by DPP for retrial of person acquitted in County or Supreme Court to — see Application by DPP to Court

of Appeal for retrial of person acquitted in County or Supreme Court application for leave to appeal decision of single Supreme Court judge on question of law or judicial review to Civil Division of, ....................... [1.870], [7.720]–[7.910] — see also Appeal from decision of single Supreme Court judge on question of law or judicial review to Civil Division of Court of Appeal case stated for determination of question of law arising from appeal from Children’s Court, by, .... [3.410]–[3.430] — see also Case stated Civil Division, ............... [1.870], [7.720]–[7.910] application for leave to appeal decision of single Supreme Court judge on question of law or judicial review to, ......... [1.870], [7.720]–[7.910] — see also Appeal from decision of single Supreme Court judge on question of law or judicial review to Civil Division of Court of Appeal procedures distinguished from those in Criminal Division, ...................... [7.730] Registrar, role and powers of, ....... [1.870], [7.820], [7.860] composition of, ......................................... [1.870] creation of, .................................. [1.380], [1.870] Criminal Division, ...... [1.760], [1.870], [3.370], [5.190], [5.220], [5.260], [5.300], [5.310], [5.370], [5.480], [7.730], [6.260], [6.290], [6.350], [6.390]–[6.430], [6.450], [6.490], [6.970], [6.1000], [6.1010], [6.1040], [6.1060]–[6.1080], [6.1390], [6.1420], [6.1450], [10.330] — see also Appeal to Court of Appeal Registar of Criminal Appeals, role of, ............. [1.760], [1.870], [3.370], [5.190], [5.220], [5.260], [5.300], [5.310], [5.370], [5.480], [6.260], [6.290], [6.350], [6.390]–[6.430], [6.450], [6.490], [6.970], [6.1000], [6.1010], [6.1040], [6.1060]–[6.1080], [6.1390], [6.1420], [6.1450] distinguished from functions of High Court, ......................................... [10.330] procedures distinguished from those in Civil Division, ............................. [7.730] declaration by, on appeal, that statutory provision cannot be interpreted consistently with human right by, .......................................................... [2.10] former right of summary dismissal of application for leave to appeal conviction, ................................... [1.660] functus officio (finality as barrier to further appeal to), .................................. [6.1710] guideline judgment by, ................ [0.20], [6.10], [6.1260]–[6.1380] — see also Guideline judgment by Court of Appeal; Sentencing

Index Court of Appeal of Victoria — cont management of work of, ........................ [1.870] petition for mercy, hearing and determination by, after any referral of case, .. [1.990], [6.1740] place in hierarchy of Victorian courts, . [1.870] reforms introduced in, . [0.10] — see also Case management Court structure in Victoria — see Victorian court structure Criminal Procedure Act 2009 (Vic) abolition of redundant and obsolete provisions by, .............................. [1.610] “appeal” defined, ....................................... [0.20] changes made to prerogative writs by, .......................................... [1.610]–[1.720] compliance (apparent) with Charter of Human Rights and Responsibilities Act 2006 (Vic) of procedures and requirements in appeal provisions under, ..... [2.170] consistency and comprehensiveness of rules regarding appeals under, ........... [0.30], [1.610] consolidation and reform of laws by, ... [0.30], [1.610]–[1.720] grounds to appeal conviction to Court of Appeal, .. [1.620] — see also Appeal to Court of Appeal against conviction at trial on indictment removal of double jeopardy considerations, ..... [0.30], [1.680] — see also Double jeopardy significant changes to case stated procedure, ..... [6.1700] — see also Case stated test for leave to appeal sentence to Court of Appeal, .. [1.650] — see also Appeal to Court of Appeal by convicted person against sentence imposed at trial on indictment test to determine appeal to Court of Appeal against conviction, . [1.630] — see also Appeal to Court of Appeal against conviction at trial on indictment test to determine appeal to Court of Appeal against sentence, ..... [1.640] — see also Appeal to Court of Appeal by convicted person against sentence imposed at trial on indictment “conviction” defined, ................................ [6.40] interlocutory appeals, introduction of, by, ............. [0.30], [1.690], [5.10] — see also Interlocutory appeal to Court of Appeal introduction of, .......................................... [0.30] limit to avenues of appeal on same matter under, ........................................... [2.170] modernisation and rationalisation of procedures by, ............................. [1.610] no appeal as of right under, .................. [1.620]

547

“originating court” defined, .................... [6.30] removal of double jeopardy considerations by, .......... [0.30], [1.680] — see also Double jeopardy scope and effect of, overview, ............... [1.610] “sentence” defined, ................................. [6.610] Victorian Department of Justice, Criminal Procedure Act 2009 – Legislative Guide, Criminal Law – Justice Statement (February 2010), .......................... [1.610] Crown — see also Attorney-General; Commonwealth Office of Public Prosecutions; Victorian Director of Public Prosecutions (DPP) bound by Charter of Human Rights and Responsibilities Act 2006 (Vic), in right of Victoria, ..................................... [2.40] conduct at trial or sentencing hearing of, relevance for appeal to Court of Appeal by DPP against sentence imposed at trial on indictment, ...................................................... [6.1170] role of, where appeal to Court of Appeal against conviction at trial on indictment, ..... [6.350], [6.400], [6.430], [6.460] role of, where appeal to Court of Appeal by convicted person against sentence imposed at trial on indictment, ...................................... [6.1010], [6.1070] Crown appeals — see Commonwealth Office of Public Prosecutions; Victorian Director of Public Prosecutions (DPP)

D Department of Justice — see Victorian Department of Justice Department of Justice and Regulation — see Victorian Department of Justice and Regulation Development of criminal appeals and reviews — see History and development of criminal appeals and reviews Director of Public Prosecutions (DPP) — see Commonwealth Office of Public Prosecutions; Victorian Director of Public Prosecutions (DPP) Double jeopardy abrogation of common law of, ... [0.30], [1.20], [1.680], [1.780], [1.910] — see also Application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court

548

Criminal Appeals and Reviews in Victoria

Double jeopardy — cont justification for, .................................. [1.780] whether applicable to federal criminal matters, ........................................ [1.910] appeal by Crown from Court of Appeal to High Court against acquittal, as infringement of principle of, ...... [9.70] appeal by DPP against acquittal prohibited because of principle of, ............... [6.30] appeal by DPP against imposition by County Court of detention (where none originally imposed) following appeal from Magistrates’ Court of Appeal, whether double breach of rule against, ........................................................ [4.290] appeal by DPP against leniency of sentence imposed by Children’s Court and principle of, ................... [3.450], [3.470] appeal by DPP against sentence for indictable offence heard and determined summarily by Children’s Court, where child breached undertaking to assist authorities, and whether relevance of, ........................................................ [3.530] appeal by DPP to County Court against leniency of sentence imposed by Magistrates’ Court and principle of, .......................................... [4.370], [4.390] appeal by DPP to Court of Appeal against sentence imposed at trial on indictment and irrelevance of, ...... [6.1120], [6.1130], [6.1150], [6.1160], [6.1180], [6.1240] application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court and limitation on rules relating to, ......... [1.780], [6.1520] double breach of rule against, . [3.380], [4.290] appeal to County Court by DPP against sentence and further appeal to Court of Appeal, whether, ................... [4.290] appeal to Court of Appeal against imposition of detention by County Court, whether, ........................... [4.290] appeal to Court of Appeal by DPP against sentence imposed on child by appellate court, whether, .......... [3.380] double punishment for same act, ........ [6.870], [10.220] avoidance of, .................................... [10.220] prohibited under Charter of Human Rights and Responsibilities Act 2006 (Vic), ........................................................ [6.870] referral of question of law to appellate court by DPP where person acquitted in trial or on appeal, and principle of, ...................................................... [6.1490]

E Equal Opportunity and Human Rights Commission — see Victorian Equal Opportunity and Human Rights Commission Evidence fresh, .......... [6.150], [6.1090], [6.1710], [6.1740], [9.20], [9.570], [10.330] appeal to Court of Appeal against conviction at trial on indictment, on, .......... [6.150], [6.1090], [6.1740], [9.570] appeal to Court of Appeal by convicted person against sentence imposed at trial on indictment, on, .......... [6.1090], [9.570] DPP Prosecutions Policies, Policy 26, “Attitude to Post–conviction Fresh Evidence, Disclosure and the Avoidance of Miscarriages of Justice”, ...................................................... [6.1710] meaning of, ........ [6.150], [6.1090], [6.1740] new evidence distinguished, ......... [6.150], [6.1090] not received on appeal to High Court, ............................ [9.20], [9.570], [10.330] fresh and compelling, .......... [6.1520], [6.1650], [6.1700] defined, ............................................. [6.1650] ground for application by DPP to apply to Court of Appeal for retrial of person acquitted in County or Supreme Court, as, ... [6.1520], [6.1650], [6.1700] jury verdict not supported by, as ground to uphold appeal to Court of Appeal against conviction at trial on indictement, ................... [0.30], [1.630], [6.80]–[6.110], [6.170], [10.100], [10.110], [10.120] new, .. [3.60], [6.150], [6.1090], [6.1200], [9.570] appeal to Court of Appeal against conviction at trial on indictment, on, .......................................... [6.150], [9.570] appeal to Court of Appeal by DPP against sentence imposed at trial on indictment and admissibility of, ...................................................... [6.1200] fresh evidence distinguished, ........ [6.150], [6.1090] hearing of appeal against conviction and sentence from Children’s Court, at, .......................................................... [3.60] Extradition — see Judicial review by Federal Court of extradition decision

F Federal Court of Australia appeal to — see Appeal to Federal Court; Appeal to Federal Court from

Index Federal Court of Australia — cont indictable proceedings; Appeal to Federal Court from summary proceedings appellate and related criminal jurisdiction of, ....... [0.30], [1.910], [8.10]–[8.810] — see also Appeal to Federal Court; Appeal to Federal Court from indictable proceedings; Appeal to Federal Court from summary proceedings overview of, ....................................... [1.910] reform of, .............................................. [0.30] case stated for, .......................................... [8.610] civil jurisdiction of, .................................... [8.20] creation of, .................................................. [8.20] judicial review by — see Judicial review by Federal Court; Judicial review by Federal Court of extradition decision juries in, ....................................................... [8.20] original jurisdiction of, ............... [1.910], [8.20] appeals in federal matters in, ......... [1.910] appeals to Full Court from, ............ [1.910] civil, ....................................................... [8.20] criminal, ................................................ [8.20] referral of question of law by DPP to, . [8.620] reservation of question for, .................... [8.610] Finality appeal by DPP against leniency of sentence imposed by Children’s Court and principle of, ................................. [3.450] appeal by DPP to County Court against leniency of sentence imposed by Magistrates’ Court and principle of, ........................................................ [4.370] appeal from Children’s Court to Supreme Court on question of law as conclusive abandonment of any right to appeal to County Court of Trial Division of Supreme Court and principle of, ................................. [3.570] appeal from Court of Appeal to High Court, judgment in, of, ............................ [9.30] appeal from Magistrates’ Court against conviction and sentence to County Court and principle of, ............. [4.270] appeal from Magistrates’ Court against sentence only to County Court, by convicted person, and principle of, ........................................................ [4.270] application for leave to appeal to Court of Appeal against conviction at trial on indictment and principle of, .... [6.600] barrier to further appeal to Court of Appeal, as, ................................................ [6.1710] exceptions or qualifications to principle of, ........................................................ [6.600] general principle recognising, . [0.10], [6.1710] importance of criminal proceeding reaching, .............................. [0.10], [0.40], [6.1710] meaning of, ............................................... [6.600] post-appeal review rights and, ............... [0.10]

549

G Guideline judgment by Court of Appeal — see also Sentencing application by party to appeal for, on, ...................................................... [6.1270] Boulton v The Queen, in, ........................... [0.20], [6.1310]–[6.1380] analysis of, ....................................... [6.1380] case for guideline judgment, ........ [6.1340] content of proposed guideline judgment, ...................................................... [6.1350] illustrative guidance on one aspect of Community Corrections Order, ...................................................... [6.1360] outcome of each appeal, ................ [6.1370] procedural background, ................ [6.1330] purpose of, ....................... [6.1310], [6.1340] significance of, ................. [6.1310], [6.1380] structure of judgment, ................... [6.1320] content of, ............................................... [6.1290] DPP, role of, ............ [6.1300], [6.1330], [6.1350] factors to be considered in giving or reviewing, .................................. [6.1280] jurisdiction to give or review, ................ [6.10], [6.1260], [6.1270] own initiative, on, .................................. [6.1270] procedure for giving or reviewing, .... [6.1300] purposes of, ................................ [0.20], [6.1260] assistance to courts in sentencing, ...................................................... [6.1260] serves public interest in administration of justice, ........................................ [6.1260] Sentencing Advisory Council, role of, ...................................... [6.1300], [6.1330] Victoria Legal Aid, role of, ... [6.1300], [6.1330]

H High Court of Australia appeal from Court of Appeal to — see Appeal from Court of Appeal to High Court appeal from Inter–State Commission to, .......................................................... [9.30] appeal from original jurisdiction of, to Full Court of, ............. [9.30], [9.590], [9.600] case stated, ......................................... [9.600] seeking constitutional writ, ............ [9.590], [9.600] appeal from Supreme Court of Nauru to, .......................................................... [9.30] function of, .............................................. [10.330] intervention by Commonwealth or State or Territory Attorney–General in matters before, ........................................... [9.320] jurisdiction of, ...... [9.10], [9.30]–[9.80], [9.330], [9.570] Constitution, under, ............... [9.30], [9.330] extensive appellate, ... [9.30]–[9.70], [9.570] original, ................................................. [9.80] product of Constitution, as, ...................... [9.10]

550

Criminal Appeals and Reviews in Victoria

High Court of Australia — cont stay of orders potentially subject of appellate jurisdiction by, power to grant, .......................................... [9.310], [9.330] summary of all criminal cases decided from January 2012 to August 2016 by, ............................................ [9.30], [9.610] supervisory function over inferior courts through writs available upon judicial review, ............................................ [0.20] unique appellate role of, . [0.20], [9.10], [9.20], [9.50], [9.100], [9.110], [10.330] appellate courts of States and Territories distinguished, ..... [9.10], [9.20], [9.110], [10.330] development of criminal law jurisprudence, ............................. [9.100] development of sentencing principles, .......................................................... [9.50] History and development of criminal appeals and reviews creature of statute, . [0.10], [1.20], [1.40], [1.60] Crimes Act 1914 (Vic), ................................ [1.40] Crimes Act 1915 (Vic), .............................. [1.600] Crimes Act 1958 (Vic), . [1.600], [1.620]–[1.640], [1.700], [1.720] copy of provisions of Criminal Appeal Act 1914 (Vic) into, ............................ [1.600] grounds to appeal conviction, ....... [1.620], [1.630] increase in sentence based on new evidence on DPP appeal prohibited (with exception), ........................ [1.720] regulation of case stated procedure, ........................................................ [1.700] summary dismissal of application for leave to appeal conviction, ....... [1.660] test to determine appeal against conviction, ................................... [1.630] test to determine appeal against sentence, ........................................................ [1.640] Criminal Appeal Act 1907 (UK), ... [1.40], [1.90], [1.110]–[1.360] changes made to prerogative writs by, ........................................... [1.110]–[1.360] origin of main statutory appeal rights and procedures in Victoria, ................ [1.40] Criminal Appeal Act 1914 (Vic), ............. [1.110], [1.150], [1.360]–[1.600], [1.660] adoption of framework of Criminal Appeal Act 1907 (UK) by, ........ [1.110], [1.150], [1.360]–[1.600] application for leave to appeal, ...... [1.380] bail pending determination of appeal, .......................................... [1.530], [1.550] changes made to prerogative writs by, ............... [1.110], [1.150], [1.360]–[1.600] copy of provisions into Crimes Act 1915 (Vic) and subsequent versions, ........................................................ [1.600] costs, whether, ................................... [1.520] dismissal of appeal, where, ............. [1.390] disposition powers, ............. [1.400]–[1.440]

“Full Court” defined, ....................... [1.380] grounds for determining appeal, ... [1.390] grounds of appeal, ............................ [1.380] miscarriage of justice, relationship with “substantial miscarriage of justice”, ........................................................ [1.390] major forms of review before, ....... [1.370], [1.400], [1.590] modifications to Criminal Appeal Act 1907 (UK) by, .......................... [1.360], [1.400] new trial directed, ............................. [1.400] petition of mercy, .............................. [1.570] powers of single appeal judge, ...... [1.550] prerogative of mercy unaffected by, .......................................... [1.370], [1.570] procedure, . [1.450]–[1.510], [1.540], [1.550] Prothonotary, role of, ....................... [1.540] rules of court made for purposes of, ........................................................ [1.560] statutory right of appeal of conviction and sentence under, ........................... [1.370] summary dismissal of application for leave to appeal conviction, ....... [1.660] writ of error, abolition of, ................ [1.580] Criminal Procedure Act 2009 (Vic) — see Criminal Procedure Act 2009 (Vic) DPP, role of, ................................................ [1.10] federal matters, .......................................... [1.10] generally, ............................ [0.10], [1.10]–[1.990] human rights, increasing emphasis / awareness of, ...... [0.10], [2.10], [2.320] importance of appeals, ................ [0.40], [0.60], [1.10]–[1.30], [1.970], [2.10] access to courts, ..................... [0.40], [1.970] balance between rights and interests of accused / convicted persons / victims and rights and interests of public in effective criminal justice system, .................... [0.40], [1.30], [1.970], [2.10] check on jury error / perversity, ..... [1.30] complexity of substantive and sentencing law, .................................................. [1.30] enhancement of equality between parties, .......................................................... [1.30] limitations to appeals, ... [0.40], [1.10], [6.1710] post-2009 events, ... [1.40] — see also Criminal Procedure Act 2009 (Vic) prerogative writs, ......................... [1.40]–[1.720] adaptation by common law of old procedures, .................................... [1.50] amalgamation into procedure of judicial review by Supreme Court Act 1986 (Vic) of, ......................................... [1.100] certiorari, ..................... [1.40]–[1.60], [1.100] changes made by Criminal Appeal Act 1907 (UK) to, ........................... [1.110]–[1.360] changes made by Criminal Appeal Act 1914 (Vic) to, .......................... [1.110], [1.150], [1.360]–[1.600] changes made by Criminal Procedure Act 2009 (Vic) to, .................. [1.610]–[1.720] changes made by Supreme Court Act 1986 (Vic) to, ............................. [1.40], [1.100] habeas corpus, ........... [1.40], [1.90], [1.100]

Index History and development of criminal appeals and reviews — cont “high” writs, as ........... [1.50], [1.70], [1.90] issue of, ....................... [1.40], [1.50]–[1.100] mandamus, ..... [1.40], [1.50], [1.70], [1.100] modern statutory changes to, .......... [1.40], [1.100]–[1.720] prohibition, ..... [1.40], [1.50], [1.80], [1.100] purpose of, ............................... [1.50]–[1.90] procedural fairness, increasing emphasis on, .......................................................... [0.10] right to appeal, .... [0.10], [1.20], [1.30], [2.170], [2.190] Charter of Human Rights and Responsibilities Act 2006 (Vic), recognised under, .......................................................... [1.20] fundamental human right, as, ......... [0.10], [2.170], [2.190] International Covenant on Civil and Political Rights 1966 (Int), recognised under, .......................................................... [1.20] justifications for, .................................. [1.30] purposes of, ......................................... [1.30] usefulness of historical analysis, ............. [1.40] Human rights consideration of, by courts, Parliament and Executive government, .... [2.10] — see also Charter of Human Rights and Responsibilities Act 2006 (Vic) increase in awareness of, ............. [0.10], [2.10], [2.320] Judicial College of Victoria, ........ [1.20], [2.10], [2.50], [2.170], [2.320] Charter of Human Rights Bench Book, ................................ [2.10], [2.50], [2.170] role of, in increasing awareness of human rights ............................................ [2.320] Victorian Human Rights: Charter Case Collection (September 2015), ...... [1.20], [2.10] not limited to those set out in Charter of Human Rights and Responsibilities Act 2006 (Vic), ...................................... [2.60] right to appeal as fundamental, ............. [0.10], [2.170], [2.190]

I Interlocutory appeal to Court of Appeal abandonment of, ...................................... [5.460] advantages to both parties of, ............... [5.130] advocacy, ........... [10.320] — see also Appellate advocacy application for leave for, ....................... [1.830], [5.60]–[5.140], [5.290]–[5.390], [5.430], [5.500], [5.520], [6.1390], [7.300] affidavit in support, content and filing by applicant of, whether, ................ [5.320] factors taken into account in granting, ........................................................ [1.700] flow chart of procedure for, ............ [5.290]

551

grant of, ...... [1.700], [5.10], [5.130]–[5.150], [5.160], [5.270], [5.280], [5.330], [5.400], [5.430]–[5.450], [5.520] — see also “grant of leave for” below hearing of, ........................... [5.140], [5.330], [5.370]–[5.390], [5.430] — see also “hearing of application for leave for” below lessening of need to pursue judicial review because of right of, ....... [7.300] list of authorities, filing and service of, ........................................................ [5.310] out of time, ......................................... [5.350] notice of, content, filing and service of, ............................ [5.300], [5.360], [5.500] prior to, ...... [5.60]–[5.120], [5.190], [5.300], [5.400] — see also “prior to application for leave for” below procedure for, ....................... [5.290]–[5.390] refusal of, .. [5.150], [5.160], [5.330], [5.420] — see also “refusal of leave for” below Registrar of Criminal Appeals, role of, ............................ [5.300], [5.310], [5.370] rehearing if refused by single judge, ........................................................ [5.330] summary of contentions, content, filing and service by each party of, .. [5.310] test to determine, .............. [5.130], [6.1390] time limits for commencing, .......... [5.340], [5.350] who determines, ................................ [5.330] application for review of refusal of trial judge to certify, ......... [5.200]–[5.280], [5.300], [5.500]–[5.520] grant of, and leave to appeal, ......... [5.300] nature of hearing, ............................. [5.270] notice of, content, filing, service and effect of, ........ [5.210], [5.240], [5.510], [5.270] notice of application for leave to appeal, filing and service of, ... [5.210], [5.240], [5.500] procedure for, ....................... [5.210]–[5.280] Registrar of Criminal Appeals, role of, .......................................... [5.220], [5.260] rehearing of, if refused by single judge, ........................................................ [5.250] right of, ............................................... [5.200] setting of hearing date, .................... [5.260] summary of contentions, content and filing by each party of, .............. [5.220] test to determine, .............................. [5.280] time limits for commencing, ........... [5.230] treatment of, may be as appeal itself, .......................................... [5.270], [5.300] urgency, determination of, .............. [5.260] who grants, ........................................ [5.250] case stated for determination of question of law as form of, ............. [3.410], [4.330] Charter of Human Rights and Responsibilities Act 2006 (Vic), whether relevant to, .......................................... [2.190], [5.450] costs, ............................................. [1.690], [5.470] DPP Prosecutions Policies, Policy 27, “Interlocutory Appeals”, ............ [5.30]

552

Criminal Appeals and Reviews in Victoria

Interlocutory appeal to Court of Appeal — cont effect of, ..................................................... [1.690] generally, .............. [0.30], [1.690], [5.10]–[5.520] grant of leave for, ....................... [1.700], [5.10], [5.130]–[5.150], [5.160], [5.270], [5.280], [5.330], [5.400]–[5.430]–[5.450], [5.520] after commencement of trial, .......... [5.430] after review of refusal of trial judge to certify, ............................. [5.270], [5.280] factors taken into account, ............. [1.700], [5.130], [5.410] general principles, ............................ [5.410] hearing and determination of appeal after or at same time as, ..................... [5.430] hearing and determination of appeal on / after, ....... [5.140], [5.430]–[5.450] — see also “hearing of” below procedure for, .................................... [5.520] refusal of, .. [5.150], [5.160], [5.330], [5.420] — see also “refusal of leave for” below when trial judge has correctly refused to certify, whether, .......................... [5.400] hearing of, ...... [5.140], [5.170], [5.430]–[5.450], [5.480] additional evidence, whether, ......... [5.440] decision and reasons provided, ..... [5.450] determination and, ............. [5.140], [5.430] determination of whether error in interlocutory decision, for, ....... [5.440] evidence at trial as basis of, ............ [5.440] general principles, ............................ [5.450] submissions relating to Charter of Human Rights and Responsibilities Act 2006 (Vic), whether appropriate, ...... [5.450] test to determine, .............................. [5.170] transmission of decision to trial court for recording, ..................................... [5.480] hearing of application for leave for, .... [5.140], [5.370]–[5.390], [5.430] admissibility of evidence, ................ [5.390] determination of date, ...................... [5.370] final appellate review of conviction distinguished, ............................. [5.390] nature of, ................ [5.380], [5.390], [5.430] indemnity certificate, when may be sought, .......................................... [1.690], [5.470] interlocutory decision, . [0.20], [3.570], [4.480], [5.40], [5.50], [7.30], [8.480] decision to uphold no case submission excluded, .......................... [5.50], [8.480] defined, ......................... [0.20], [5.40], [5.50] final order distinguished, . [3.570], [4.480], [7.30] when can be made, ............................. [5.40] introduction by Criminal Procedure Act 2009 (Vic) of, ................. [0.30], [1.690], [5.10] meaning of, ............................................... [1.830] New South Wales, in, ................................ [5.10] Office of Public Prosecutions Victoria, DPP Prosecutions Policies, Policy 27, “Interlocutory Appeals”, ............ [5.30] orders available on successful, .............. [5.180] post–appeal procedures, ......................... [5.480]

prior to application for leave for, . [5.60]–[5.120], [5.190], [5.200], [5.300], [5.400] certification by trial judge, . [5.70]–[5.120], [5.200], [5.300], [5.400] contact with Registry of Court of Appeal, ............................................ [5.60], [5.190] refusal of certification by trial judge, ......... [5.110], [5.200], [5.400] — see also “application for review of refusal of trial judge to certify” above urgent matter, where, ....................... [5.190] purpose of, ...................... [0.30], [2.190], [5.130] refusal of leave for, ..... [5.150], [5.160], [5.330], [5.420] conclusion of interlocutory appeal process, .......................... [5.150], [5.420] further appeal on same issue not precluded, ...................... [5.160], [5.420] rehearing if refused by single judge, ........................................................ [5.330] Registrar of Criminal Appeals, role of, ............. [5.190], [5.220], [5.260], [5.300], [5.310], [5.370], [5.480] reservation for unusual cases of, ........... [5.40], [5.90], [5.410] right to, .............................. [1.690], [5.10], [5.20] special type of strict appeal, as, ............ [1.830] test to determine, ..................................... [5.170] time for commencement of, ................... [1.830] urgent, ........................................................ [5.190] who can appeal, ......................................... [5.30] International Covenant on Civil and Political Rights 1966 (Int), basis of rights under Charter of Human Rights and Responsibilities Act 2006 (Vic), as, ................................ [2.10], [2.60], [2.170] right to appeal recognised under, .......... [1.20], [2.170]

J Judicial College of Victoria Charter of Human Rights Bench Book, ...... [2.10], [2.50], [2.170] publications of, generally, ........................ [0.30] role of, in increasing awareness of human rights, ........................................... [2.320] Sentencing Manual (2016), ...................... [6.610], [6.680]–[6.720], [6.740]–[6.760], [6.780]–[6.830], [6.845], [6.860], [6.870], [6.900]–[6.920], [6.940], [6.960], [6.1250], [6.1300] Victorian Criminal Proceedings Manual (2016), ................. [4.30], [4.70], [4.140], [4.160], [4.230]–[4.250], [4.370], [4.430], [4.500], [5.10], [5.80]–[5.100], [5.280], [5.410], [5.450], [6.30], [6.60], [6.90], [6.100], [6.150], [6.160], [6.240], [6.250], [6.290], [6.370]–[6.400], [6.430], [6.490], [6.530], [6.580], [6.1470], [6.1480], [6.1500], [6.1700], [6.1740]

Index Judicial College of Victoria — cont Victorian Human Rights: Charter Case Collection (20150, ................................ [1.20], [2.10] Judicial review appeal distinguished from, ....... [0.20], [1.800], [3.580] application for leave to appeal to Court of Appeal from decision of Supreme Court judge on, . [7.720]–[7.910] — see also Appeal from decision of single Supreme Court judge on question of law or judicial review to Civil Division of Court of Appeal case stated distinguished, ........ [3.580], [4.490] Charter of Human Rights and Responsibilites Act 2006 (Vic), relevance to, ........... [2.190], [2.270] decision of Children’s Court, of, ........... [3.580] decision of County Court on appeal from Magistrates’ Court, of, by Supreme Court, ................. [7.10], [7.250]–[7.310], [7.330]–[7.710], [7.920], [7.950], [7.970], [7.990] — see also Judicial review by Supreme Court decision of Magistrates’ Court, of, by Supreme Court, ............. [4.490], [7.10], [7.250]–[7.280], [7.310], [7.320], [7.350]–[7.710], [7.920], [7.950], [7.970], [7.990] — see also Judicial review by Supreme Court decision of single judge of Supreme Court hearing original appeal from Children’s Court, of, .................. [3.580] decision of single Supreme Court judge hearing original appeal from Magistrates’ Court, of, .............. [4.490] DPP reference distinguished, .. [3.580], [4.490] extradition decision, of — see Judicial review by Federal Court of extradition decision Federal Court, by — see Judicial review by Federal Court; Judicial review by Federal Court of extradition decision jurisdiction to hear and determine applications for, .......................... [1.800] meaning of, ................................................. [0.20] prerogative writs, use of, . [0.20], [1.60]–[1.80], [1.800], [6.1510] certiorari, meaning and purpose of, ............................................ [1.60], [1.800] mandamus, meaning and purpose of, ............................................ [1.70], [1.800] prohibition, meaning and purpose of, ............................................ [1.80], [1.800] purpose of, .................................................. [0.20] referral of question of law to appellate court distinguished, ............................. [3.580] statutory appeal distinguished, ........... [6.1510] Judicial review by Federal Court decision made by Commonwealth officer, of, ........................................................ [1.910]

553

extradition decision, of, ............. [1.910], [8.10], [8.820]–[8.890] — see also Judicial review by Federal Court of extradition decision Judicial review by Federal Court of extradition decision “extradition”, meaning of, ..................... [8.820] generally, ............ [1.910], [8.10], [8.820]–[8.890] international extradition, .......... [8.820]–[8.870] admissible evidence on all reviews and appeals, ........................................ [8.870] applicable law, ................................... [8.820] application for leave to appeal from Full Court to High Court, ................. [8.860] criminal offences involved in, ........ [8.820] disposition powers, .......................... [8.840] flow chart of procedure for, ............ [8.830] human rights of person subject to, ........................................................ [8.820] judicial review of decision by Attorney–General or Minister to extradite, application for, ......... [8.880], [8.890] judicial review seeking prerogative writ, where available, ......................... [8.880] procedural fairness, .......................... [8.890] procedure for, ......... [8.820]–[8.840], [8.880] sole jurisdiction of Federal Court to review, ............. [8.820], [8.840], [8.850], [8.890] waiver of extradition, ......... [8.820], [8.840] national extradition, ................................ [8.820] Judicial review by Supreme Court — see also Supreme Court of Victoria application for leave to appeal to Civil Division of Court of Appeal from decision on, . [7.720]–[7.910] — see also Appeal from decision of single Supreme Court judge on question of law or judicial review to Civil Division of Court of Appeal availability of, ............... [7.250], [7.280]–[7.300] decision of County Court on appeal from Magistrates’ Court, of, ............... [7.10], [7.250]–[7.310], [7.330]–[7.710], [7.920], [7.950], [7.970], [7.990] affidavit in support, ........... [7.400], [7.420], [7.430] affidavit of service by plaintiff, where necessary, ..................................... [7.510] appeal to Practice Court against order made by Associate judge, ......... [7.610] application for ex parte relief by plaintiff, where, ........................................... [7.510] availability of, ........ [7.250], [7.280], [7.290] binding nature of judgments, ........... [7.10] civil proceeding, as, .............. [7.10], [7.250] commencement by filing originating motion and affidavit in support, ........................................................ [7.430] costs, .......................... [7.10], [7.660], [7.700]

554

Criminal Appeals and Reviews in Victoria

Judicial review by Supreme Court — cont court under review, role in proceedngs of, ............................ [7.270], [7.490], [7.510] disposition of sucessful, ................... [7.250] fees, whether, ..................................... [7.430] grounds for, ............ [7.250], [7.260], [7.310] importance of jurisdiction, ................ [7.10] initial documentation, ..................... [7.250], [7.400]–[7.430], [7.920], [7.950] originating motion, .......................... [7.250], [7.350]–[7.410], [7.430]–[7.480], [7.920], [7.950] parties, ...... [7.250], [7.270], [7.450], [7.490] procedure for — see “procedure for all cases” below purpose of, ........................... [7.250], [7.300] rules governing, .................... [7.10], [7.250] right to apply for leave to appeal interlocutory decision to Court of Appeal as lessening of need for, ........................................................ [7.300] striking out of charge, of, .................. [7.30] transcript of proceedings under review, ............................ [7.310], [7.330], [7.340] decision of Magistrates’ Court, of, ...... [4.490], [7.10], [7.250]–[7.280], [7.310], [7.320], [7.350]–[7.710], [7.920], [7.950], [7.970], [7.990] affidavit in support, ........... [7.400], [7.420], [7.430] affidavit of service by plaintiff, where necessary, ..................................... [7.510] appeal to Practice Court against order made by Associate judge, ......... [7.610] application for ex parte relief by plaintiff, where, ........................................... [7.510] availability of, ...................... [7.250], [7.280] binding nature of judgments, ........... [7.10] civil proceeding, as, .............. [7.10], [7.250] commencement by filing originating motion and affdavit in support, ........................................................ [7.430] costs, .......................... [7.10], [7.660], [7.700] court under review, role of, ........... [7.270], [7.490], [7.510] disposition of sucessful, ................... [7.250] fees, whether, ..................................... [7.430] grounds for, ............ [7.250], [7.260], [7.310] importance of jurisdiction, ................ [7.10] initial documentation, ..................... [7.250], [7.400]–[7.430], [7.920], [7.950] notice of appearance by defendant, .......................................... [7.500], [7.510] orders for relief, ................................ [7.250] originating motion, .......................... [7.250], [7.350]–[7.410], [7.430]–[7.480], [7.920], [7.950] parties, ...... [7.250], [7.270], [7.450], [7.490] procedure — see “procedure for all cases” below purpose of, ......................................... [7.250] rules governing, .................... [7.10], [7.250] striking out of charge, of, .................. [7.30]

transcript of proceedings under review, .......................................... [7.310], [7.320] directions, ........ [7.540]–[7.580], [7.620]–[7.630], [7.920], [7.960], [7.970] consent, by, ......................................... [7.550] court book, ......................................... [7.540] filing of further affidavits and affidavits in reply, ............................... [7.540], [7.620] fixing of hearing date, ...................... [7.570] liberty to apply, retention by parties of, ........................................................ [7.560] question relating to application of Charter of Human Rights and Responsibilities Act 2006 (Vic), where, ....................... [7.580] samples of, ............. [7.920], [7.960], [7.970] written submissions, .......... [7.540], [7.630] procedure for all cases, ............................ [7.10], [7.520]–[7.710], [7.920], [7.960]–[7.990] affidavit in reply, ................. [7.540], [7.620] application for summary judgment, ........................................................ [7.600] Associate judge, .................. [7.530], [7.610] callover form, ..................................... [7.650] combined book of authorities ......... [7.640] costs, .......................... [7.10], [7.660], [7.700] court book, ............ [7.540], [7.640], [7.920], [7.980], [7.990] directions, . [7.540]–[7.580], [7.620]–[7.630], [7.920], [7.960], [7.970] — see also “directions” above directions hearing, ............................ [7.530] discontinuance of proceeding, ......... [7.10], [7.660] flow chart of, ..................................... [7.710] further affidavit, .................. [7.540], [7.620] further directions hearing, .............. [7.650] hearing and determination, ........... [7.670], [7.690] notice of hearing, ................ [7.570], [7.650] notice of trial, .................................... [7.650] resolution by consent, ...................... [7.590] sample forms of orders and directions, ............................ [7.920], [7.960], [7.970] withdrawal of proceeding, .............. [7.660] written outlines of submissions, ... [7.540], [7.630] venue, ......................................................... [7.520] Jury Directions Act 2015 (Vic) purposes of, .................................... [0.30], [1.30] replacement of Jury Directions Act 2013 (Vic) by, ...................................... [1.30], [6.530] Victorian Law Reform Commission, Jury Directions, Final Report (2009), .. [1.30] Justice — see also Miscarriage of justice interests of, meaning of, ......................... [5.130] public interest in administration of, ...... [0.20], [1.900], [6.1260], [9.100] guideline judgment by Court of Appeal and, ............................................. [6.1260] test to assist in determining appeal from Court of Appeal to High Court, ............................................ [0.20], [9.100]

Index Justice — cont reconceptualisation of concept of, by removal of double jeopardy, .................... [1.780]

L Law Reform Commission of New South Wales — see New South Wales Law Reform Commission Law Reform Commission of Victoria — see Victorian Law Reform Commission

M Magistrates’ Court of Victoria appeal from — see Appeal from Magistrates’ Court Chief Magistrate, ...................................... [4.110] composition of, ........................................... [4.20] conviction by, ...................... [4.10], [4.30]–[4.50] appeal by convicted person against sentence and — see Appeal from Magistrates’ Court meaning of, .......................................... [4.40] no right of appeal against only, ....... [4.30] recording of, ............................. [4.40], [4.50] creation of, .................................................. [4.20] criminal jurisdiction of, ............................ [4.20] Drug Court Division, ................................ [4.20] Family Violence Division, ........................ [4.20] guilt, finding of, by, ................................... [4.40] judicial registrar, ............ [4.20], [4.110], [4.480], [4.500] appeal from decision of, ... [4.110], [4.480], [4.500] — see also Appeal from Magistrates’ Court delegation by Chief Magistrate of specific powers to, .................................... [4.110] immunity of, ...................................... [4.110] jurisdiction, role and limits to powers of, ........................................................ [4.110] matters heard and determined by, . [4.110] judicial review by Supreme Court of decision of, ......... [4.490], [7.10], [7.250]–[7.280], [7.310], [7.320], [7.350]–[7.710], [7.920], [7.950], [7.970], [7.990] — see also Judicial review by Supreme Court Koori Court Division, ............................... [4.20] magistrate, ....................................... [4.20], [4.70] Neighbourhood Justice Division, ............ [4.20] place in hierarchy of Victorian courts, . [1.870] registrar, ........................... [4.20], [4.140], [4.160] rehearing of charge based on absence of accused from proceeding in, ..... [4.90], [4.100], [4.510] application for, ..................... [4.100], [4.510] cancellation, suspension or variation of driver’s licence, where, ............. [4.100] discretion as to allowing, .................. [4.90] failure of applicant to appear at, consequence of, .......................... [4.100]

555

hearing de novo, as, ........................... [4.90] notice of intention to apply for, content and filing of, ................................. [4.90] stay of sentence on filing of application for, ................................................. [4.100] sentence, .......................................... [4.30], [4.50] all available to court, .......................... [4.50] appeal by convicted person against conviction and — see Appeal from Magistrates’ Court appeal by convicted person against only — see Appeal from Magistrates’ Court unfitness to stand trial in, ........................ [4.80] venues, ......................................................... [4.20] Mental impairment appeal against finding by Children’s Court of, ............................ [3.150]–[3.170], [3.610] disposition powers of appellate court, ........................................................ [3.170] notice of appeal, .................. [3.150], [3.610] right to, ............................................... [3.150] test for determining, ......................... [3.160] appeal to Court of Appeal by accused person against supervision order made at trial on indictment because of, where, ........................................................ [6.330] appeal to Court of Appeal by accused person against verdict of not guilty at trial on indictment because of, ............... [6.10], [6.290]–[6.310] circumstances where verdict could arise, ........................................................ [6.290] disposition powers of court on successful, ........................................................ [6.310] generally, .............................................. [6.10] grounds for determining, ................ [6.300] procedure, .......................................... [6.290] Registrar of Criminal Appeals, role of, ........................................................ [6.290] statutory right of, subject to leave, . [6.10], [6.290] appeal to Court of Appeal by DPP against revocation of non-custodial supervision order made at trial on indictment because of, .............. [6.340] appeal to Court of Appeal by DPP against unconditional release of person found not guilty at trial on indictment because of, ................................... [6.320] appeal to Federal Court against acquittal on indictable proceeding on ground of, .............................. [8.40], [8.120]–[8.140] disposition powers of Federal Court, ........................................................ [8.140] test to determine, .............................. [8.130] defence of, ..................................... [3.140], [4.80] Magistrates’ Court, in, ....................... [4.80] meaning of, ............................ [3.140], [4.80] finding by Children’s Court that child not guilty of indictable offence heard

556

Criminal Appeals and Reviews in Victoria

Mental impairment — cont summarily because of, ............... [0.30], [3.140]–[3.170], [3.610] appeal against, ....... [3.150]–[3.170], [3.610] consequence of, ..................... [0.30], [3.140] Victorian Law Reform Commission, Crimes (Mental Impairment and Unfitness to be Tried Act 1997, Consultation Paper No 17 (2013) and Consultation Paper No 19 (2013) and Final Report (2014) recommendations, ......... [3.90], [3.140], [4.80] Mercy, petition for — see Petition for mercy Miscarriage of justice appeal against conviction after plea of guilty where, ............................................. [6.60] avoidance of, ............................ [5.130], [6.1710] compensation for, whether, ...................... [1.30] DPP Prosecutions Policies, Policy 26, “Attitude to Post–conviction Fresh Evidence, Disclosure and the Avoidance of Miscarriages of Justice”, ......... [6.1710] quashing of conviction where, ................ [6.60] relationship with “substantial miscarriage of justice” under former Criminal Appeal Act 1914 (Vic), ............................. [1.390] substantial, ....... [0.30], [1.390], [1.630], [3.160], [6.80], [6.110]–[6.150], [6.530], [8.90], [10.100], [10.130]–[10.170] caused by directions / lack of directions to jury by trial judge, ................ [6.530] ground upon which Court of Appeal can uphold appeal against conviction at trial on indictment, as, . [0.30], [1.630], [6.80], [6.110]–[6.150], [10.100], [10.130]–[10.170] relationship with “miscarriage of justice” under former Criminal Appeal Act 1914 (Vic), ............................................. [1.390] test to determine appeal against finding of mental impairment in child, .... [3.160] test to determine appeal to Federal Court against conviction, ....................... [8.90] test to determine appeal to Federal Court against conviction, ..................... [8.110] Victorian Director of Public Prosecutions, DPP Prosecutions Policies, Policy 26, “Attitude to Post–conviction Fresh Evidence, Disclosure and the Avoidance of Miscarriages of Justice”, ...................................................... [6.1710]

N New South Wales Law Reform Commission Criminal Appeals, Report 140 (June 2014), .......... [0.10], [0.30], [3.20], [4.60], [5.10] New trial sucessful appeal to Court of Appeal against

conviction at trial on indictment, after, ............. [6.160], [6.170], [6.190], [6.220], [6.570] alternative offence, for, ....... [6.160], [6.190] bail pending, ........................ [6.160], [6.570] failure of appellant to appear at, warrant of arrest where, .......................... [6.570] order for attendance of appellant for, .......................................... [6.160], [6.220] remand in custody pending, ......... [6.160], [6.570] successful appeal to Court of Appeal by accused person against verdict of not guilty because of mental impairment at trial on indictment, after, ..... [6.310] successful appeal from Court of Appeal to High Court, after, ......... [9.120], [9.130] successful application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court, after, authorisation of and prohibitions at, ...................................................... [6.1690]

O Office of Public Prosecutions — see Commonwealth Office of Public Prosecutions; Victorian Director of Public Prosecutions (DPP)

P Petition for mercy Attorney-General, role of, and, ............ [1.990], [6.1720], [6.1730] advice to Premier, ............. [1.990], [6.1720] discretionary and unreviewable referral to Court of Appeal or Trial Division of Supreme Court for opinion, ..... [1.990] discretionary referral of case to Court of Appeal, ....................................... [6.1730] instigation of inquiries, .................. [6.1720] basic features, ........... [1.990], [6.1720], [6.1730] decision of executive government, not of court, .......................................... [6.1720] grounds may be legal / non-legal, ...................................................... [6.1730] jurisdiction, ...................................... [6.1720] petitioner taken to be person who has obtained leave to appeal, if case referred to Court of Appeal, .. [6.1730] prerogative power exercised by Governor of Victoria as Crown representative on advice of Premier, ...... [1.990], [6.1720] referral of case to Court of Appeal by Attorney-General discretionary, ...................................................... [6.1730] reasons not requred for decision to grant / not grant, ............................... [6.1720] types of mercy provided, ................ [1.990] discretionary and unreviewable exercise of power, ........................................... [1.990]

Index Petition for mercy — cont example of case, ..................................... [6.1740] federal matters, ........................................ [1.990] generally, .......... [1.10], [1.330], [1.570], [1.990], [6.10], [6.1710]–[6.1740] hearing and determination by Court of Appeal after any referral of case, ........................................ [1.990], [6.1740] last resort after exhaustion of statutory rights to appeal conviction or sentence, as, ...................................... [6.1710], [6.1720] procedure, ................. [1.990], [6.1730], [6.1740] statistics about, ....................................... [6.1740] types of mercy, ......................... [1.990], [6.1740] Public interest administration of justice, in, ..... [0.20], [1.900], [6.1260], [9.100] guideline judgment by Court of Appeal and, ............................................. [6.1260] test to assist in determining appeal from Court of Appeal to High Court, ............................................ [0.20], [9.100] appeal by DPP against leniency of sentence imposed by Children’s Court and requirement of, ........................... [3.450] appeal by DPP to County Court against leniency of sentence imposed by Magistrates’ Court and requirement of, .................................................. [4.370] appeal by DPP to Court of Appeal against sentence imposed at trial on indictment and constraint of, ....................... [6.1120], [6.1140]–[6.1150] appeal by DPP to Supreme Court / Court of Appeal against bail order if in, ........................................................ [3.290] appeal by DPP to Supreme Court / Court of Appeal against grant of bail pending appeal to County Court against conviction and sentence / sentence only by Magistrates’ Court if in, ........................................................ [4.210] maintenance of efficient and effective justice system, in, ................................... [1.970] meaning of, ............................... [1.900], [6.1120] representation by DPP in criminal proceedings of, ........................... [1.900] right of individual to access courts balanced with, .......... [0.40], [1.30], [1.970], [2.10] rights of intervention by Attorneys-General and, ............................................... [1.920] Public prosecutions — see also Commonwealth Office of Public Prosecutions; Victorian Director of Public Prosecutions (DPP) creation of UK office of, .......................... [1.270]

R Referral of question of law to appellate court — see also Case stated application / interpretation of Charter of

557

Human Rights and Responsibilities Act 2006 (Vic), about, ............. [0.20], [2.10], [2.160], [2.250], [6.1480] DPP, by, .......... [3.440], [4.360], [6.1490], [8.620] double jeopardy principle and, .... [6.1490] effect of, ............................................ [6.1490] entitlement of acquitted person to reasonable costs, ....... [6.1490], [6.1500] Federal Court, to, .............................. [8.620] not appeal against judgment or order, ...................................................... [6.1490] person acquitted in trial on indictment before Supreme or County Court, where, ......................................... [6.1490] person acquitted on appeal from Children’s Court, where, .......... [3.440] person acquitted on appeal from Magistrates’ Court, where, ....... [4.360] person acquitted on appeal to County Court from Magistrates’ Court, where, ...................................................... [6.1490] generally, ..................................................... [6.10] judicial review distinguished, ............... [3.580] “question of law”, meaning of, ........... [6.1400] Retrial of acquitted person — see Application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court

S Sentencing Community Corrections Order, ............. [4.50], [6.770], [6.790], [6.1310]–[6.1380] deterrent effect of, whether, ............ [6.790] guideline judgment by Court of Appeal in Boulton v The Queen, ...................................... [6.1310]–[6.1380] punishment, as, ..................... [4.50], [6.770] complexity of law of, ................................ [1.30] crushing sentence, ................... [6.860], [10.220] avidance of, ...................................... [10.220] meaning and effect of, ..................... [6.860] cumulation and concurrency of sentences, ........................................................ [6.910] current practices, ......... [6.650], [6.840], [6.845], [10.190] jurisdiction of intermediate appellate court to express view on adequacy of, ........................................................ [6.845] limits to usefulness of sentences in other jurisdictions, ................................ [6.840] limits to usefulness of sentences in past cases, ............................................. [6.840] meaning of, ........................................ [6.840] problematic where offence committed many years ago, ......................... [6.840] purpose of reference to, ................... [6.840] relevance to whether sentence manifestly excessive, ....... [6.650], [6.840], [10.190] uplifting, ............................................. [6.845]

558

Criminal Appeals and Reviews in Victoria

Sentencing — cont double punishment for same act impermissible, ............. [6.870], [10.220] factors relevant to, ...... [6.670]–[6.820], [6.950], [6.960], [6.1130], [6.1280], [6.1290], [6.1310]–[6.1380], [10.200], [10.220] circumstances of offence, . [6.760], [10.200] circumstances of offender, ............. [6.710]–[6.730], [6.760], [6.950], [6.960], [6.1130], [10.200], [10.220] exceptional hardship on offender, . [6.720] exceptional hardship on offender’s family, ........................................................ [6.740] excessive delay between date of charge and sentence, .............................. [6.710] guideline judgement by Court of Appeal, ...... [6.1280], [6.1290], [6.1310]–[6.1380] mental state of offender, ... [6.950], [6.960], [6.1130], [10.220] plea of guilty, ..................................... [6.680] plea of not guilty, .............................. [6.680] prospect of deportation, .................. [6.710] protective custody / prison hardship, ........................................................ [6.730] purposes of sentencing, .... [6.750]–[6.820], [6.1360], [10.200] rejected plea offer, ............................. [6.690] remorse, .............................................. [6.700] sentencing purposes, .......... [6.750], [6.760] youth and relative youth, .. [6.750], [6.800] federal offenders, of, ................................. [1.30] guideline judgment by Court of Appeal, ... [0.20], [6.10], [6.1260]–[6.1380] — see also Guideline judgment by Court of Appeal Magistrates’ Court, by, .............................. [4.50] maximum penalty, use of, ....... [6.830], [6.840], [6.845] multiple offences, where, ....................... [6.850] non-parole periods, ................... [6.880], [6.930] meaning of, ........................................ [6.930] order of serving sentences and, ..... [6.880] purpose of, ......................................... [6.930] order of serving sentences, .................... [6.880] parity principle where co-offenders / same offence by another in same circumstances, . [1.30], [6.940], [10.220] parsinomy principle, ............................... [6.920] post-sentence detention, ......................... [6.820] power of Court of Appeal to direct amendment of judgment or sentence on application for leave to appeal sentence, .................................... [6.1055] proportionality of, ....... [6.770]–[6.800], [6.820], [6.840], [6.850], [6.1360], [10.220] Community Corrections Order and, ...................................................... [6.1360] exceptions to, ..................................... [6.820] human rights and, ............................ [6.840] purposes of, .... [4.50], [6.750]–[6.820], [6.1360], [10.200] community protection, ...... [6.760], [6.820], [10.200]

denunciation of conduct of offender, .......................... [6.760], [6.810], [10.200] deterrence, ............. [6.760], [6.790], [6.800], [10.200] “instinctive synthesis” methodology and, ........................................................ [6.760] punishment, ............ [4.50], [6.760]–[6.780], [6.800], [6.1360], [10.200] rehabilitation, ...... [6.750], [6.800], [6.1360], [10.200] “sentence” defined, ..................... [4.50], [6.610] Sentencing Act 1991 (Vic), under, ........... [0.20], [6.10], [6.760], [6.770], [6.790], [6.800], [6.820]–[6.840], [6.880]–[6.930], [6.1260], [10.200] concurrency of sentences, ................ [6.910] cumulation of sentences, ................. [6.910] current sentencing practices, relevance of, ........................................................ [6.840] guideline judgements by Court of Appeal, ... [0.20], [6.1260] — see also Guideline judgment by Court of Appeal hierarchy of sentencing options, .... [6.920] indefinite sentences, ......................... [6.820] non-parole periods, ............ [6.880], [6.930] order of serving sentences, ............. [6.880] parsinomy principle, ........................ [6.920] purposes of sentencing, .... [6.760], [6.770], [6.790], [6.800], [10.200] regard to be had to maximum penalty for offence, ........... [6.830], [6.840], [10.200] time reckoned as already served, . [6.890], [6.900] State offenders, of, ..................................... [1.30] time reckoned as already served, ........ [6.890], [6.900] pre-sentence detention connected to matters being sentenced for, .... [6.890] pre-sentence detention not connected to matters being sentenced for, .... [6.900] totality, principle of, .. [6.850], [6.860], [10.220] breach of, .............................. [6.850], [6.860] crushing sentence distinguished from sentence breaching, .................... [6.860] meaning of, ........................................ [6.850] unlawfulness of disproportionate, ....... [6.770], [6.780] Sentencing Advisory Council of Victoria guideline judgment by Court of Appeal, role in, ................................ [6.1300], [6.1330] Sentence Appeals in Victoria: Statistical Research Report (March 2012), ...... [1.740], [9.60] Standing Committee of Attorneys–General Harmonisation of Criminal Appeals Working Group, Harmonisation of Criminal Appeals Legislation, Discussion Paper (2010), ............................................. [0.30] Supreme Court of Victoria application by DPP to Court of Appeal for retrial of person acquitted in, ... [0.40],

Index Supreme Court of Victoria — cont [1.780], [6.10], [6.30], [6.1520]–[6.1700] — see also Application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court bail pending trial, inherent jurisdiction to grant, ............................................ [3.270] case management, ... [1.730]–[1.770] — see also Case management composition of, ......................................... [1.870] Court of Appeal — see Court of Appeal of Victoria establishment of, ........................ [1.100], [1.870] Full Court of, abolition of, ..................... [1.870] judge, authority of, .................................... [7.10] judicial registrar, ....................................... [4.110] Judicial Reviews and Appeals List of Trial Division, ............ [3.570], [3.590], [4.40], [4.480], [4.490], [7.10], [7.520]–[7.710], [7.920], [7.960]–[7.990] — see also Appeal to Supreme Court appeal from Children’s Court / Magistrates’ Court on question of law to, ......... [3.570], [3.590], [4.30], [4.480], [4.500], [7.10]–[7.240], [7.520]–[7.710], [7.940], [7.960], [7.980] — see also Appeal from Children’s Court; Appeal from Magistrates’ Court application for leave to appeal to Civil Division of Court of Appeal from decision by single judge on question of law or judicial review in, ......... [7.720]–[7.910] — see also Appeal from decision of single Supreme Court judge on question of law or judicial review to Civil Division of Court of Appeal judicial review of decision of Magistrates’ Court / County Court on appeal from Magistrates’ Court, in .. [4.490], [7.10], [7.250]–[7.710], [7.920], [7.950], [7.970], [7.990] — see also Judicial review by Supreme Court jurisdiction of, . [1.100], [1.800], [1.870], [7.10], [7.250] place in hierarchy of Victorian Courts, ........................................................ [1.870] powers of, ................................................. [1.100] Prothonotary, ................ [3.220], [3.270], [3.340] reforms to management of criminal appeals, . [0.10], [1.730]–[1.770] — see also Case management selection of judges of Full Court, ......... [1.120] structure of, ............................................... [1.870] Trial Division, .. [1.870], [3.20], [3.220], [3.290], [7.10]–[7.710], [7.920]–[7.990] — see also “Judicial Reviews and Appeals List of Trial Division” above appeal to Court of Appeal from, ... [1.870] — see also Appeal to Court of Appeal appeal from Decision of President of Children’s Court to, .. [3.20] — see also Appeal from Children’s Court

559

creation of, ......................................... [1.870]

T Trial on indictment appeal from, ................................ [6.30], [6.1520] aquittal, against, DPP prohibited from, .......................................... [6.30], [6.1520] conviction, against, to Court of Appeal — see Appeal to Court of Appeal against conviction at trial on indictment; Court of Appeal of Victoria finding of unfitness to stand trial, against — see Appeal to Court of Appeal against finding of unfitness to stand trial at trial on indictment sentence, against, by convicted person — see Appeal to Court of Appeal by convicted person against sentence imposed at trial on indictment sentence, against, by DPP — see Appeal to Court of Appeal by DPP against sentence imposed at trial on indictment verdict of not guilty because of mental impairment, against, by accused person — see Appeal to Court of Appeal by accused person against verdict of not guilty because of mental impairment at trial on indictment case stated procedure following, ............ [6.10] petition of mercy following, .................... [6.10] referral of question of law from, ............ [6.10]

U Unfitness to be tried appeal against finding by Children’s Court of, ................ [0.30], [3.100]–[3.130], [3.610] disposition powers of appellate court, ........................................................ [3.120] notice of appeal, .................. [3.130], [3.610] procedure for appeal, ....................... [3.130] right of, ............................................... [3.100] test for determining, ......................... [3.110] appeal to Court of Appeal against finding at trial on indictment of, disposition powers of court on successful, ........................................................ [6.280] procedure, .......................................... [6.260] Registrar of Criminal Appeals, role of, ........................................................ [6.260] statutory right to, subject to leave, . [6.10], [6.250] test for determining, ......................... [6.270] time to commence, ............................ [6.260] “unfitness” defined, .......................... [6.250] jurisdiction of Children’s Court to determine issue of, .............................. [0.30], [3.90] Magistrates’ Court, in, .............................. [4.80]

560

Criminal Appeals and Reviews in Victoria

Unfitness to be tried — cont Victorian Law Reform Commission, Crimes (Mental Impairment and Unfitness to be Tried Act [1997] Consultation Paper No 17 (2013) and Consultation Paper No 19 (2013) and Final Report (2014) recommendations, ......... [3.90], [3.140], [4.80]

who may apply for authorisation by DPP, ...................................................... [6.1540] written authorisation by DPP not required, where, ....... [6.1540], [6.1560] written authorisation by DPP required, where, ......................................... [6.1540]

V

Victorian court structure appeals and reviews within, .... [1.870], [1.880] overview of hierarchy, .............. [1.870], [1.880]

Vexatious litigant declaration as, .......................................... [1.970] leave of Supreme Court required to commence legal proceedings, .. [1.970]

Victorian Department of Justice Criminal Procedure Act 2009 – Legislative Guide, Criminal Law – Justice Statement (February 2010), .......................... [1.610]

Victims of crime communications with Office of Public Prosecutions about adequacy of sentences, ....................... [3.460], [4.380] duties of DPP to, ...................................... [1.900] Victim Impact Statement, ....................... [1.900]

Victorian Department of Justice and Regulation From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 Final Report (2015), recommendations, .......... [2.10], [2.40], [2.50], [2.60], [2.90], [2.140]–[2.160] — see also Charter of Human Rights and Responsibilities Act 2006 (Vic)

Victoria Legal Aid Criminal Appeals Review (September 2014), ........................................................ [1.730] guideline judgment by Court of Appeal, role in, ................................ [6.1300], [6.1330] provision of legal assistance by, .............................. [2.230]–[2.250], [4.60] application of legislative provisions for, ........................................................ [2.250] cannot be ordered for appeal from Magistrates’ Court to County Court, .......................................................... [4.60] grounds for, ........................................ [2.230] relevance of Charter of Human Rights and Responsibilities 2006 (Vic) to, .......................................... [2.230]–[2.250] trial counsel fee following 2011 reforms, ........................................................ [1.760] Victoria Police appeal by DPP against final order of Children’s Court / Magistrates’ Court on question of law to Supreme Court, on behalf of, ... [7.20], [7.50] — see also Appeal from Children’s Court; Appeal from Magistrates’ Court meaning of, ................................................. [2.50] no standing to commence proceedings in higher courts in name of, ........ [3.460], [4.380] reinvestigation of offence of which person acquitted, by, circumstances where, ................... [6.1540]–[6.1560] — see also Application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court “reinvestigate” defined, ................. [6.1540] test for authorising, ........................ [6.1550]

Victorian Equal Opportunity and Human Rights Commission notice to, before declaration by Supreme Court / Court of Appeal of inconsistent interpretation of Charter of Human Rights and Responsibilities Act 2006 (Vic), .................................... [2.150] notice to, of referral to Supreme Court / Court of Appeal of question of law about application of/ interpretion of statutory provision in accordance with Charter of Human Rights and Responsibilities Act 2006 (Vic), .. [2.160] role of, in relation to Charter of Human Rights and Responsibilities Act 2006 (Vic), .......................................................... [2.10] annual reports, .................................... [2.10] Victorian Law Reform Commission Crimes (Mental Impairment and Unfitness to be Tried Act [1997], Consultation Paper No 17 (2013) and Consultation Paper No 19 (2013) and Final Report (2014), Recommendations, ........ [3.90], [3.140], [4.80] Jury Directions, Final Report (2009), ....... [1.30] Victorian Director of Public Prosecutions (DPP) appeal against acquittal by, ........ [0.20], [6.30], [6.1520], [8.40], [8.60], [8.480]–[8.500], [8.640]–[8.660], [8.730]–[8.750], [8.810], [9.70] Court of Appeal to High Court, whether from, ... [9.70] — see also Appeal from Court of Appeal to High Court

Index Victorian Director of Public Prosecutions (DPP) — cont indictable proceedings to Federal Court, where no case finding, from, .... [8.40], [8.60], [8.480]–[8.500] — see also Appeal to Federal Court from indictable proceedings infringement of double jeopardy principles, as, ................................ [9.70] not allowed, where, ............... [0.20], [6.30], [6.1250], [9.70] summary proceedings to Federal Court, from, ... [8.640]–[8.660], [8.730]–[8.750], [8.810] — see also Appeal to Federal Court from summary proceedings appeal against bail order to Supreme Court / Court of Appeal by, grounds and procedure for, ............... [3.290], [4.210] appeal against final order of Children’s Court / Magistrates’ Court on question of law to Supreme Court, on behalf of police informant, by, .. [7.20], [7.50] — see also Appeal from Children’s Court; Appeal from Magistrates’ Court appeal against leniency of sentence imposed in summary proceeding by Children’s Court by, ..... [3.450]–[3.500], [3.620] — see also Appeal from Children’s Court appeal against sentence for indictable offence heard and determined summarily by Children’s Court by, where child breached undertaking to assist authorities, .. [3.510]–[3.560], [3.620] — see also Appeal from Children’s Court appeal against sentence fromMagistrates’ Court to County Court by, where convicted person breached undertaking to asssist authorities, .. [4.10], [4.430]–[4.470], [4.500], [4.550] — see also Appeal from Magistrates’ Court appeal against supervision order imposed by Children’s Court by, .... [3.180], [3.630] — see also Appeal from Children’s Court appeal against unconditional release where finding by Children’s Court of not guilty of indictable offence heard summarily because of mental impairment by, .. [3.190], [3.630] — see also Appeal from Children’s Court appeal from Court of Appeal to High Court against sentence by, ........ [9.10], [9.40], [9.60] — see also Appeal from Court of Appeal to High Court appeal to Court of Appeal against imposition by County Court of detention by (where none originally imposed), following appeal from Magistrates’ Court, ........................................... [4.290] appeal to Court of Appeal against sentence imposed at trial on indictment by, ............. [1.760], [3.450], [6.320], [6.330],

561

[6.610], [6.1120]–[6.1250] — see also Appeal to Court of Appeal by DPP against sentence imposed at trial on indictment appeal to Federal Court against finding of no case in indictable proceeding by, ....... [8.40], [8.60], [8.480]–[8.500] — see also Appeal to Federal Court from indictable proceedings appeal to Federal Court against sentence imposed at indictable proceeding by, .... [8.560]–[8.590] — see also Appeal to Federal Court from indictable proceedings appeal to Supreme Court against decision on application by DPP for revocation of bail pending appeal against conviction and sentence from Magistrates’ Court to County Court by, ................... [4.220] appeals under Criminal Procedure Act 2009 (Vic) by, generally, ..................... [1.900], [6.1120]–[6.1250] sentence, against, ............. [6.1120]–[6.1250] statistics about, ................................ [6.1120] application / appeal to revoke bail by, .......................................... [3.300], [4.220] application / appeal to vary bail by, ... [3.280] application to Court of Appeal for retrial of person acquitted in County or Supreme Court, ............... [0.40], [6.30], [6.1520]–[6.1700] — see also Application by DPP to Court of Appeal for retrial of person acquitted in County or Supreme Court commencement of appeal by, generally, ........................................................ [1.900] communications by victims of crime about adequacy of sentences with, .... [3.460] consent to Supreme Court grant of bail by, ........................................................ [3.270] creation of, ................................................ [1.900] DPP Prosecutions Policies, ......... [3.450], [4.370], [4.460], [5.30], [6.1120], [6.1220], [6.1550], [6.1600], [6.1640], [6.1650], [6.1700], [6.1710] Policy 11, “Appeals by the DPP to the Court of Appeal”, ....... [3.450], [4.370], [6.1120], [6.1220] Policy 26, “Attitude to Post-conviction Fresh Evidence, Disclosure and the Avoidance of Miscarriages of Justice”, ...................................................... [6.1710] Policy 27, “Interlocutory Appeals”, . [5.30] Policy 37, “Retrials and Reinvestigations after Acquittals”, ..... [6.1550], [6.1600], [6.1640], [6.1650], [6.1700] Policy 52, “DPP appeals under s 427 and 429A of the Children Youth and Families Act 2005”, ...... [3.450], [4.460] duties to victims of crime, ..................... [1.900] functions of, .............................................. [1.900] guideline judgment by Court of Appeal, role in, ................ [6.1300], [6.1330], [6.1350]

562

Criminal Appeals and Reviews in Victoria

Victorian Director of Public Prosecutions (DPP) — cont judicial review distinguished from reference by, .................................... [3.580], [4.490] prosecution decision made by, not susceptible to appeal or review, ................... [1.940] “public authority”, as, .............................. [2.50] referral of question of law to Court of Appeal by, after acquittal of person following appeal from Children’s Court, ........................................................ [3.440] representation of Crown by, .................. [1.900] representation of “public interest” in criminal proceedings by, ........................... [1.900] role in criminal matters of, ....... [1.10], [1.900], [1.910] Victorian Parliament Law Reform Committee De Novo Appeals to the County Court (2006), ................ [1.670], [1.790], [4.60], [4.140] Victorian Supreme Court — see Supreme Court of Victoria

W Warrant of arrest issue of, ............ [4.160], [4.210], [4.260], [6.570]

failure of appellant to appear at appeal from Magistrates’ Court against conviction and sentence, where, ........................................................ [4.260] failure of appellant to appear at new trial after successful appeal to Court of Appeal against conviction at trial on indictment, where, ..................... [6.570] failure of respondent to appear at appeal by DPP to Supreme Court against grant of bail, ................................ [3.290] failure of respondent to appear at appeal by DPP to Supreme Court / Court of Appeal against grant of bail pending appeal to County Court against conviction and sentence / sentence only by Magistrates’ Court, where, ........................................................ [4.210] striking out of appeal from Magistrates’ Court against conviction and sentence, where, ........................................... [4.160]