What do I need to know?

What is aRoyal Commission?

Preparation

A Guide to AppealsAgainst Conviction and Sentence

Pathwaysto Appeal

Process

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Written by Josh Taaffe and Bill Doogue

IndexIntroduction

Appeals from the Magistrates’ Court of Victoria to the County Court

Sentence Appeals from the Magistrates’ Court

Conviction Appeals from the Magistrates’ Court

County Court Appeals

Considering an Appeal against Conviction or Sentence

Appeals from Judges in the County Court

Common Elements and The Need for Forensic Error

Appeal Against Conviction in the Court of Appeal – Three Possible Pathways

Appeal Against Sentence in the Court of Appeal – Error or Manifest Excess

Appeal Against Conviction and / or Sentence Time Lines

What do You Want Your Lawyers to do in a Court of Appeal Case?

Appeal from the Court of Appeal to the High Court of Australia 9 Application for Special Leave to Appeal 9 The Appeal

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IntroductionAppealing against a sentence or a conviction is a complicated process.

In this document, you will find information that give you a good indication of timelines and a better understanding of the appeals process.

It is important that you fully understand how an appeal case works and what you should expect from a solicitor in an appeal case.

Josh Taaffe PartnerTrial Counsel | Accredited Criminal Law Specialist

“Not every accusation is true and many truthful accusations are exaggerated or made up of a mixture of truth and lies.”

Josh Taaffe specialises in representing his clients at trial. As a defence lawyer, he is interested in the challenges of advocacy, but t he is motivated more by the desire to protect the rights of his clients, represent their interests as strongly as possible, and achieve just outcomes.

In the role of counsel, Josh works as the advocate as a team with other lawyers from our firm. This involves examining and cross-examining witnesses, addressing juries and making legal submissions before Judges. Josh has been studying the skills and techniques of advocacy for many years and putting them to work for his clients. As a solicitor Josh has specialised in handling complex matters, such as murder and terrorism trials.

Bill Doogue DirectorAccredited Criminal Law Specialist

“We’re not here to be bystanders, we’re here to win for our clients and unless you have that drive to succeed for your client,you can’t help them properly.”

Bill Doogue has over 25 years experience as a defence Lawyer and has been an Accredited Criminal Law Specialist for almost 20 years. He was awarded a Law

Institute of Victoria Service Award in 2013.

Bill oversees most of the major criminal trials and has appeared for and advised current and former Liberal and Labour Politicians from both State and

Federal parliaments, high ranking church officials and many high profile cases. He has worked with Queen’s Counsel and Chief Corporate Counsel for

one of Australia’s biggest corporations to provide strategic advice about potential issues that were faced.

Bill particularly enjoys the strategic challenges that come from being involved in appeals cases.

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Appeals from the Magistrates’ Court of Victoria to the County Court

An accused person in a criminal case can appeal any

decision a Magistrate has made to the County Court.

Those people convicted and sentenced for criminal offences in the summary jurisdiction of the Magistrates’ Court have a right to appeal against both their conviction and/or sentence.

This appeal is to the County Court of Victoria. An appeal is commenced by filing a notice of appeal at the Magistrate’s Court within 28 days of sentence.

In Victoria, most offences are dealt with in the Magistrates’ Court. Even many very serious crimes are capable of being heard by the Magistrates’ Court.

The reason for this, is so that cases can be dealt with more efficiently and with less expense. The Magistrate’s Court is able to deal with a greater volume of work and with less delay than if all of these cases were dealt with by judge and jury.

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Sentence Appeals from the Magistrates’ CourtOn the hearing of the appeal, the County Court must set aside the sentence of the Magistrates’ Court. They may impose any sentence which the County Court considers appropriate and which the Magistrates’ Court imposed or could have imposed. They can also may exercise any power which the Magistrates’ Court exercised or could have exercised.

The County Court must impose the sentence which it considers appropriate. This means that it is possible for the County Court to impose a more severe sentence than what was imposed in the Magistrates’ Court.

If the County Court Judge is considering imposing a more severe sentence then the Judge must warn the appellant that the Court may impose a more severe sentence.

This warning must be given when the Judge considers that an increased sentence is a “practical possibility” in the particular case, rather than the theoretical possibility that exists in all cases.

The obligation is triggered when the judge becomes aware of the real possibility of imposing a more severe sentence. This will often occur early in the appeal when the Judge hears the prosecution summary.

At this stage an appellant must consider whether to continue with the appeal and risk the imposition of a more serious sentence or to abandon the appeal.

Generally a lawyer will have instructions from their client in advance that if they are warned about being “upped” (i.e. having their sentence increased) that they will abandon the appeal. Therefore, giving the Judge a reason to impose the same penalty as had been imposed by the Magistrate.

Conviction Appeals from the Magistrates’ CourtThe prosecution present their case first and again carry the burden of proving their case beyond reasonable doubt. The witnesses have to come and give evidence again.

On a hearing de novo, the appellant and respondent are not limited to presenting the evidence that they presented in the court below.

A party could change the way it defends a case or call new witnesses. In addition, the matter is determined on the law as it stands at the date of the appeal.

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County Court AppealsAppeals to the County Court are called “hearing de novo” appeals, meaning that there is a new hearing of the case gain. The offender is not bound by his or her plea in the Magistrates’ Court and the County Court judge must hear and determine the matter again. The appellant does not need to show that the decision below was affected by error like it does with appeals to the Court of Appeal.

County Court appeals serve an important function, giving an accused a second chance where he or she feels that the wrong result was arrived at in the Magistrates’ Court.

This wrong result may be that you were convicted when you should not have been or that you received a more severe sentence than was appropriate.

So how that sometimes works to the advantage of the appellant (and the community) is that on a plea in mitigation of sentence, the appellant may present further evidence of rehabilitation between the date of the Magistrates’ Court hearing and the date of the appeal.

Considering an Appeal against Conviction or SentenceThe lawyers representing you in any criminal case should always give you advice about the appropriateness of the result and the merits of any possible appeal. That advice will only be as good as the lawyers who give it. If you have a sense that the result you received in a criminal matter was not right, you should look into the possibility of an appeal by consulting us.

When considering a matter for appeal it is necessary to study the entire record of the case below. This involved obtaining all transcripts, exhibits, recordings of parts of the proceedings that were not transcribed and studying the result including the reasons for sentence where necessary and all of the information available to police and available to the defence. A thorough analysis of all material and extensive conferences with you to discuss an appeal are required.

Only by properly understanding your case and any concerns or grievances that you might have, can we give sound advice about the merits of an appeal.

Appeals from Judges in the County Court If you are convicted and sentenced for criminal offences in the County Court you have a right to appeal to the Supreme Court of Victoria. You can appeal against both your conviction and/or your sentence.

These are known either as a Sentence Appeal or a Conviction Appeal. If you are appealing both it is known as an Appeal Against Conviction and Sentence.

Both types of Appeals are heard in the Court of Appeal. The Court of Appeal is sometimes called an Appellate Court. The Court of Appeal is a specialist court that deals solely with appeals against conviction and sentence.

Common Elements and The Need for Forensic ErrorAn appeal against conviction and an appeal against sentence are governed by different considerations.

They do, however, contain one important element: the need for an applicant to demonstrate forensic error.

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Forensic error is a phrase to indicate that the process leading to the conviction of an accused or the sentencing an offender has somehow became unfair. What flows from that is generally that the conviction or sentence has to be set aside.

In the case of a successful appeal against conviction, this may lead to a retrial or, in some situations, the entering of a verdict of acquittal (not guilty). That is the Court deciding that, on the evidence, you could never have been found guilty of the charges. If there is a sentencing error, this may lead to a different and less severe sentence being imposed.

Appeal Against Conviction in the Court of Appeal – Three Possible PathwaysThe jurisdiction – or to put it in another way, the powers of the Court of Appeal – to overturn an appeal against conviction can occur in three situations.

1. The verdict is unreasonable or cannot be supported having regard to the evidence.When this ground is argued on appeal, an Appellate Court is required to consider all the evidence thatwas produced at trial and to conduct an independent review of the nature and quality of the evidence todetermine whether, in fact, the verdict is unsafe.

It is important to note that success on this ground will pivot on whether the Court of Appeal finds thatthe jury should have had a reasonable doubt as to the guilt of the accused.

It is not simply that the jury could have had a doubt about the guilt of the accused. As such, the Court ofAppeal gives great weight to the verdict of the jury. It is only when because the quality of the evidence isso poor or where there is a real and clear problem with a verdict of guilt that the court will intervene andset the conviction aside.

If you are successful appealing on the basis that the verdict was unreasonable or unsupported by theevidence the Court will enter an acquittal (i.e. a finding of not guilty).

2. Where there has been some error or irregularity in the trial that has resulted in a substantialmiscarriage of justice.An ‘error’ or ‘irregularity’ in the trial can arise in numerous ways.

Some of the most common ways it arises is by the wrongful admission of evidence or misdirection of thejury by the trial judge. This ground can include misconduct by a jury or juror. The appeal may be basedon a failure to discharge the jury because of something that has occurred during the trial. It can alsoinclude failure to give directions that are favourable to the accused. An example is the failure to give agood character direction when an accused is entitled to that direction of law.

In successfully arguing this ground of appeal it is necessary to establish that the ‘error’ or ‘irregularity’has actually caused a ‘substantial miscarriage of justice’. That is, that the error or irregularity complainedof is of such importance that is has caused a substantial miscarriage of justice. Success on this groundof appeal will ordinarily lead to a retrial being ordered. A bail application would then be considered if aclient is in custody because of the verdict.

3. For any other reason there has been a substantial miscarriage of justice.This is a category that covers all other possibilities that may arise in the course of a criminal trial but donot ‘fit’ within the above grounds of appeal.

Examples may include incompetence of trial counsel and completely over the top comments by aprosecutor in the opening or closing address. Or it may be because of a ‘combination of errors’ thatoccurred in the trial process that the verdict should not be permitted to stand. In short, anything thathas deprived an accused person of a fair trial and resulted in a substantial miscarriage of justice.

Again, like the second category, success on this ground would ordinarily lead to an order for a retrial.

Appeal Against Sentence in the Court of Appeal – Error or Manifest ExcessAny person who lodges an appeal against sentence is required to seek leave from the Court of Appeal to have the appeal heard and determined by that Court.

That leave is dependent on the Court coming to the view that a different and less severe sentence is warranted in all of the circumstances of the offence and the offender. i.e. there has been a forensic error.

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To establish forensic error in an appeal against sentence typically occurs in two ways.

1. That there has been some error in the conducting of the sentencing process and the sentence producedis too severe as a result.Some examples include a sentencing judge failing to have regard to relevant considerations or – theopposite – having regard to irrelevant considerations.It may arise because of a sentencing judge not according procedural fairness or the admission into thesentencing of inadmissible evidence.Or it may arise because a sentencing Judge fails to accept that a matter is mitigating (i.e. should lessenpenalty) or treating a matter as aggravating (i.e. should increase penalty) when, in fact, it was not.

2. And the most common ground of appeal against sentence – is that the sentence imposed ismanifestly excessive.The phrase manifest excess expresses a conclusion, i.e. that the sentence was obviously excessive.In essence, it is stating the proposition that given all the circumstances of the offence and the personalcircumstances of the offender the sentence is simply wrong orOr to explain it another way, manifest excess is a submission that it was simply not open for thesentencing judge to impose the sentence that they did.

Appeal Against Conviction and / or Sentence Time LinesTo appeal against conviction and / or sentence an applicant must follow strict time limits.

Both appeals against conviction and sentence must be filed within 28 days from the date of sentence.

That requires that the Notice of Appeal containing the Grounds of Appeal is to be filed along with the Written Case within that time frame.

The Written Case is the document that sets out the arguments that will be relied upon to establish the Grounds of Appeal as set out in the Notice of Appeal.

The Written Case is a complex document which relies on your lawyers having read all the transcripts of the trial or sentence. They will also need to have all your instructions about what you believe went wrong.

The Court of Appeal can in certain circumstances extend time to lodge those documents but that only occur in unusual circumstances and will require a detailed explanation from the applicant why that has occurred.

What do You Want Your Lawyers to do in a Court of Appeal Case?1. Get all necessary material together as soon as possible.2. Read material and make assessment of it.3. Arrange Appellate Counsel (i.e. barristers who specialise in these appeals).4. You would want advice as to whether a written case should be filed and what grounds of appeal are.5. Give you honest advice as to any appeal points that might be successful.

Your lawyers should be able to explain those appeal points to you in simple language and explain their chances of success.

Appeal from the Court of Appeal to the High Court of Australia Criminal appeals from the Victorian Court of Appeal to the High Court of Australia (“the High Court”) are very rare. There are two stages:

1. Application for special leave to appeal.2. The appeal.

Application for Special Leave to AppealThe application for special leave to appeal must be lodged within 28 days of the judgement of the Court of Appeal. If later, a special order must be asked for to allow the application for special lave to appeal to proceed.

The application for special leave to appeal is governed by Section 35A of the Judiciary Act 1903 (Cth) states:

“…the High Court may have regard to any matters that it considers relevant but shall have regard to:

(a) whether the proceedings in which the judgment to which the application relates was pronouncedinvolve a question of law:

(i) that is of public importance, whether because of its general application or otherwise; or(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolvedifferences 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. You mustsatisfy these criteria to have an appeal heard.

Typically, the High Court grants special leave to cases when the case is novel and where there is a conflict between Australian jurisdictions on a question of law.

As the High Court is the ultimate arbiter of the law in Australia, it tends to grant special leave to cases that are of major public importance to the administration of criminal justice.

These generally arise when in the Court of Appeal of a particular State or Territory where there is a clear dispute over an issue that falls inside these categories

It is also important to note that as the High Court is the ‘final’ legal option for those who wish to challenge a conviction and / or sentence, it has an important ‘supervisory’ role to correct any miscarriage of justice that may have occurred but was not corrected by the Court of Appeal.

The special leave application normally limits the time for argument to 15 minutes for each party.

The High Court Rules allow the Judges to decide an appeal “on the papers”. That is that they do not have to allow someone to have a Court hearing for the special leave application. Two Judges can decide the case without it being heard in Court (other than for the result to be read out).

To run a special leave application takes a lot of work by your lawyers and you would not start doing this without having some indication that your matter falls inside the limited matters that can be given special leave.

The Appeal If you are given special leave to appeal then a date is set down for an appeal. The Court will decide how many Judges will hear the case.

They will then consider the written submissions and an appellant is often given a limited time to make their submissions. The Judges will have read all the material and the cases that the Court have been referred to and so the argument is generally very confined at this level. As such it is generally used well after a conviction and it is incredibly rare for this process to be used and even rarer for it to be successful.

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You will need expert advice and support if you are appealing against a conviction or sentence.

Doogue + George lawyers have considerable experience in dealing with appeals. You can search the database of decisions of the Victorian Court of Appeal accessible through the Australasian Legal Information Institute (AustLII) website. Searching the database for the name of our firm will reveal the many appeal cases we have been involved in.

If you need expert advice regarding appealing a conviction or sentence, visit www.dobg.com.au or call 03 9670 5111 for more information.

Melbourne Level 5, 221 Queen Street 9670 5111 Heidelberg 1/94 Burgundy Street 9455 0787 Broadmeadows 24A Railway Crescent 9351 1455 Moorabbin 1/441 South Road 8527 4700Sunshine 136 Durham Road 9311 8442 www.dobg.com.au

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