20.4.1 - Appeal Against Conviction

1. A person convicted of an offence in the Trial Division of the Supreme Court or the County Court in its original jurisdiction may appeal against conviction to the Court of Appeal if the Court of Appeal gives leave to appeal (CPA 2009 s274).
2. A notice of application for leave to appeal against conviction must be in Form 6-2A of the Supreme Court (Criminal Procedure) Rules 2008 and must be filed with the Registrar of Criminal Appeals (Supreme Court (Criminal Procedure) Rules 2008 r2.05). A written case, which complies with Supreme Court of Victoria, Practice Note SC CA 1 must be filed with the notice of application for leave to appeal.
3. The Act does not specify the basis on which the Court of Appeal may grant leave to appeal. In accordance with existing practice, hearings for leave to appeal against conviction are hearings on the merits. In determining leave, the Court may hear the appeal instanter or adjourn the appeal for hearing before an full bench. Otherwise, the Court will refuse leave to appeal or dismisses the application (R v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117; Supreme Court (Criminal Procedure) Rules 2008 r2.08).[1]
4. The right to seek leave to appeal against conviction accrues when the plea or jury verdict is accepted. A person may seek leave to appeal against conviction even if the court imposes a sentence that does not involve recording a conviction (R v Celep [1998] 4 VR 811; CPA 2009 s3).
5. In general, a person should wait until after sentencing before he or she applies for leave to appeal. It is only appropriate to seek leave to appeal after plea or verdict and before sentence in exceptional circumstances (R v De Marchi [1983] 1 VR 619).
6. A party applies for leave to appeal under s274 by filing a notice of application for leave to appeal and written case within 28 days of the day on which the person is sentenced. The Registrar of Criminal Appeals must then provide a copy of the notice and written case to the respondent within 7 days of filing (CPA 2009 s275).
7. The notice of application for leave to appeal must be in prescribed form (Supreme Court (Criminal Procedure) Rules 2008 r2.05) and must state the grounds of appeal as they appear in the written case. The notice must also be signed by counsel, the applicant's solicitor or the applicant personally, depending on whether the accused is represented. The written case must comply with the requirements set out in Supreme Court of Victoria, Practice Note SC CA 1.
8. 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 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 (CPA 2009 s276(1)).

9. The three grounds above are the only bases for allowing an appeal and in all other cases the Court of Appeal must dismiss the appeal (CPA 2009 s276).
10. Once an application for leave to appeal is heard and determined on the merits and passes into record, the Court cannot hear a second application for leave to appeal. An offender who wishes to show a miscarriage of justice (such as by bringing fresh evidence) must rely on the petition for mercy process (R v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117). See 19.5 - Record of Proceedings for more information on the power to correct error when the court is functus officio.
11. The written case must identify specific errors in the trial process, rather than the general appeal grounds in s276(1). While the following is not an exhaustive list, it provides an indication of some issues that can arise in the trial process:
    • lack of jurisdiction to hear and determine the charge;
    • errors in the indictment, such as duplicity;
    • errors affecting the jury process, such as apprehension of bias or errors in empanelment;
    • errors by the trial judge on procedural matters, such as orders in relation to separate trials or by improperly refusing an adjournment;
    • denial of procedural fairness;
    • improper conduct by the prosecution;
    • the judge made a wrong decision on the admission or exclusion of evidence;
    • incompetence of counsel;
    • the judge erred in his or her charge to the jury;
    • the verdict is unsafe or unsatisfactory;
    • the verdicts on separate counts are inconsistent.
12. Many of these errors relate to other parts of the criminal procedure process, and are dealt with in others parts of this manual. Other errors (such as errors relating to the admission or rejection of evidence or jury directions) are beyond the scope of this manual. Some grounds that are specifically relevant to appellate review are considered in the following sections.
13. Some of these matters involve discretionary decisions where there are a range of permissible decisions and no single factor is necessarily determinative. In addition, minds can reasonably differ over how discretionary power should be exercised. Appellate courts reviewing discretionary decisions therefore act with restraint (Coal and Allied Operations v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47; Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46; R v Gallagher [1998] 2 VR 671; R v Chung & Rechichi (2010) 25 VR 221; [2010] VSCA 39).
14. As there are a range of permissible decisions, a judge will not make a "wrong decision on a question of law" by declining to exercise a discretion unless he or she erroneously holds that the discretion does not exist or is not available (R v Gallagher [1998] 2 VR 671; R v Edwards [1998] 2 VR 354).
15. When a judicial officer misdirects him or herself in respect of a discretionary decision, an appellate court will only uphold the decision if it can conclude that the primary decision maker would necessarily have made the same decision by applying the correct principles. In contrast, if the judge was not asked to exercise the discretion, the appellate court will only intervene if it would not have been open to refuse to exercise the discretion (compare R v Parsons [1998] 1 VR 471 and R v Gallagher [1998] 2 VR 671).

Footnotes:

[1] - In exceptional cases, it appears that the Court of Appeal may refuse leave to appeal even though the applicant can meet one of the appeal grounds under s276. The requirement in s276 to allow the appeal if the party establishes one of the appeal grounds only arises after the court has given leave to appeal. This may be necessary if allowing the appeal would be manifestly unjust (see R v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117 at [46] per Callaway JA).

Last updated: 14 February 2013