In Victoria, there are two kinds of appeal:
- Conviction appeals; and
- Sentence appeals.
Most appeals are progressed through the Court of Appeal where there has been a Trial or Plea in the County Court of Victoria or Supreme Court of Victoria. However, there are also appeal provisions available to appeal a decision made in the Magistrates’ Court. If you are appealing a sentence or a decision of a Magistrate after a Contested Hearing in the Magistrates’ Court, the proper venue will be the County Court of Victoria. This article will focus on Court of Appeal mattes. However, if you have a Magistrates’ Court appeal, please go to our Appeals page on our website or contact our office to discuss your matter with one of our experienced criminal defence lawyers.
Conviction Appeals
A conviction appeal will be instigated after you are found guilty of an offence, which you deny committing. Usually, a conviction appeal is filed with the Court of Appeal after a trial where the accused has been found guilty by a jury. The appellant, through their criminal defence lawyers, may have identified an error in the trial or in the judge’s charge to the jury which compromised the trial and led to the conviction. The appellant may argue that the jury was wrong in convicting them, that the conviction is unsafe and should be reversed in what is referred to as a ‘merit’s appeal’. More unusually, the appellant may rely on fresh evidence that only became known to the appellant after he or she was convicted and they want to progress a ‘fresh evidence’ appeal. Prior to 2020, fresh evidence appeals could generally only be progressed by the prosecution with the leave of the Supreme Court. However, after the case of Orman v The Queen, where we identified fresh evidence which overturned Mr. Orman’s murder conviction, Parliament changed the Criminal Procedure Act 2009 to allow accused persons to pursue appeals with fresh evidence. Since that time, there have been at least two cases, Cvetanovski v The Queen and Roberts v The Queen, where fresh evidence has led to convictions being overturned.
An application for leave to appeal a conviction must usually be filed within 28 days of the appellant being sentenced for the offending. If it is filed outside of the 28 day period, the application will have to be accompanied by an application for leave to appeal out of time and an affidavit, sworn or affirmed by your lawyer, explaining why the appeal was filed out of time. In recent times, the Court of Appeal has become increasingly strict in relation to appeals filed out of time. The Court now wants to be satisfied that any delay in filing a Notice of Application for Leave to Appeal is justified. Accordingly, engaging an appropriately qualified and experienced criminal appeals lawyer is vital in order to progress your matter through the Court.
After filing the Notice of Application for Leave to Appeal, the Grounds of Appeal and the Written Case, the Court of Appeal will decide whether to grant leave to appeal. The Court will only grant leave if it thinks that there are merits to the appeal. Leave will not be granted unless the Court thinks that one or more of the grounds of appeal have some prospect of success. If leave is granted, the Court can move to have an appeal hearing, where your Counsel will appear to argue the case. This is called oral argument and provides an opportunity for your lawyer to advocate on your behalf and answer any questions posed by the bench.
After the Hearing, the Court will adjourn to consider its decision. Appeal hearings in the Court of Appeal require that a bench of three judges preside. A majority decision is required in any appeal. Sometimes, all of the judges will be in agreement as to whether to grant the appeal. However, only a majority of two is required. The remaining judge is often referred to as the dissenting judge. Once a decision is made, the Court will advise the appellant that the judgment will be handed down. The Court will be re-called and the lead judge will announce the Court’s decision and make any orders relevant to the decision. For example, the Court may find that leave to appeal ought be granted, that the conviction should be overturned and a verdict of acquittal entered. If this occurs, the appellant will be freed from the body of the Court or from the prison where they are held. The conviction will also be removed from their criminal record.
Sentence Appeals
Sentence appeals occur where the appellant isn’t challenging their conviction but disagrees with the nature of the sentence imposed. Both the accused and the prosecution can lodge a sentence appeal. The accused person may appeal their sentence because they consider it manifestly excessive (ie, too severe) or defective in some way. The prosecution might challenge a sentence as being too lenient. Much like a conviction appeal, a sentence appeal must be filed within 28 days of the sentence being imposed, unless leave to appeal out of time is granted. The appellant must then file their Notice of Application for Leave to Appeal the Sentence, accompanied by a Written Case outlining why they say that the sentence was too severe or too lenient. If the appeal is granted, the Court will seek to re-sentence the accused person by either increasing their sentence or decreasing their sentence. The Court can also give the accused person a warning that, if they proceed with their sentence appeal, the Court might reopen the sentencing discretion and increase the sentence imposed in the Court below. Accordingly, it is important to get the best possible advice from an experienced criminal defence lawyer before making any decisions in relation to progressing a sentence appeal.
If you or your loved one are considering an Appeal, you should contact our firm to arrange an Initial Client Consultation with one of our experienced criminal appeal lawyers. Our firm has unparalleled success in the Court of Appeal and we are passionate about ensuring that all meritorious appeals are pursued through the Court of Appeal.
