TO COURT OF APPEAL AGAINST INTERLOCUTORY DECISION BY TRIAL JUDGE

Defence and prosecution applications for leave to appeal against interlocutory decision by trial judge: Criminal Procedure Act ss.3, 295-301; Lindsey (a pseudonym) v R [2021] VSCA 230; Velkoski v R [2014] VSCA 121; PNJ v DPP [2010] VSCA 88, (2010) 27 VR 146; CGL v DPP (No 2) [2010] VSCA 24, (2010) 24 VR 482. Interlocutory appeals are not suitable vehicles with which to challenge routine evidentiary rulings: Marston v R [2022] VSCA 253.

Generally it depends upon certification by trial judge: Criminal Procedure Act s.295; McDonald v DPP [2010] VSCA 45. Review of refusal to certify: Cano (a pseudonym) v R [2020] VSCA 308

Where a question is raised on an interlocutory appeal about the admissibility or exclusion of evidence, the question is whether the judge’s decision was correct; it is not merely whether it was reasonably open: Steven Moore (a pseudonym) v R [2024] HCA 30 (overturning the law as it had been held in Victoria).

Whether to exclude tendency and coincidence evidence by Evidence Act s.97; Danny (a pseudonym) v R [2018] VSCA 223; KJM v R [2011] VSCA 268; (2011) 33 VR 11.

Whether to exclude of tendency and coincidence evidence by Evidence Act s.101; Pope (a pseudonym) v R [2017] VSCA 324.

Whether to exclude evidence by Evidence Act s.137; Ramaros (a pseudonym) v R [2018] VSCA 143; Harris (a pseudonym) v R [2017] VSCA 316.

Whether to exclude evidence unlawfully obtained: Evidence Act s.138; Slater (a pseudonym) v R [2019] VSCA 213; DPP (Cth) v Farmer (a pseudonym) [2017] VSCA 292.

Whether to admit hearsay evidence: Thomas (a pseudonym) v R [2021] VSCA 269.

When reviewing a judge’s decision to grant or refuse a permanent stay for abuse of process, if the Court of Appeal considers that the trial judge was in no better position to decide the particular question, or if, after giving full weight to his or her decision, the Court considers that it was wrong, the Court must give effect to its own judgment: Ballard (a pseudonym v R [2024] VSCA 26.

TO COURT OF APPEAL AGAINST VERDICT OF GUILTY

Appeals from trial convictions to the Court of Appeal division of the Supreme Court: Criminal Procedure Act Part 6.3; Supreme Court Act sections 10-16; Supreme Court (Criminal Procedure) Rules; Practice Note 2019-SC CA 1.

These will have been from trials by jury with some exception introduced 2020 during emergency conditions concerning judge alone trials: Criminal Procedure Act ss.420G-420M.

The application for leave to appeal, and the appeal if leave is granted, are not a re-hearing of trial.

The Court of Appeal ordinarily for a case of this kind is comprised of two or three judges of Appeal; occasionally more especially if the overruling of a precedent of the Court of Appeal is under consideration; usually only two for interlocutory matters. In any case, if the President of the Court of Appeal so determines, two Judges of Appeal constitute, and may exercise all the jurisdiction and powers: Supreme Court Act s.11; R v Sebalj [2006] VSCA 106.

Applications to the Court of Appeal in Victoria against conviction by jury are governed inter alia by Criminal Procedure Act s.276(1) which provides

Determination of appeal against conviction
(1) On an appeal under section 274, 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.


The first category, "unreasonable" or "cannot be supported" is by para (a). Often in the past called "unsafeness", the category takes meaning from High Court authority relevant to the section, its predecessor, and other jurisdictions with similar provisions.

The question is whether the appellate court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses. In most cases a doubt experienced by an appellate court will be a doubt which a 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: Aleski (a pseudonym) v R [2020] VSCA 124; Pell v R [2020] HCA 12, (2020) 268 CLR 123; M v R [1994] HCA 63, (1994) 181 CLR 487 (majority). See also Chamberlain v R (No 2) [1984] HCA 7, (1984) 153 CLR 521, of notoriety but outdated at law.

The court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory: the court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability: Fennell v R [2019] HCA 37.

Generally speaking, the court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box: Pell v R [2020] HCA 12 (including an electronic observation as the jury had in that case). In a case such as Pell, the court is to proceed "upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." Where as in Pell there is other evidence, the court must engage with whether, against this evidence, it is reasonably possible that the complainant's account is not correct, such that there is a reasonable doubt as to guilt (which the analysis by the Victorian Court of Appeal majority joint judgment had failed to do, amongst a number of errors made). Any compounding improbabilities must be included in the engagement. It seems the jury's positive assessment of credibility and reliability is to be assumed to have refined to the degree of being thoroughly credible and reliable, this being the basis on which the High Court dealt with the key witness in Pell.

The Pell case spelt out the manner of proceeding where there is available a video-recording of a witness' evidence at trial. The mere availability of such a recording "does not mean that the proper discharge of the function of the appellate court necessitates a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court."

Pell was an Archbishop (later Cardinal) against whom a complainant's main allegation was of sexual offences against him and another choirboy (since deceased) on an occasion in a sacristy shortly after Mass. There was evidence raising an issue of lack of opportunity to commit the offences. The High Court held unanimously that the complainant's account was without independent support and upon the assumption that the jury assessed the complainant’s evidence as thoroughly credible and reliable, the issue was whether the compounding improbabilities caused by the unchallenged evidence of (i) the Archbishop's movements after the Mass in particular time on Cathedral front steps (ii) the Archbishop always being accompanied within the Cathedral and (iii) the timing of the assaults and the "hive of activity" in the sacristy nonetheless were sufficient to require the jury, acting rationally, to have entertained a doubt as to the applicant's guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there was a significant possibility that an innocent person had been convicted. Left aside was a further claimed improbability that (iv) no persons observed, and took action to stop, two robed choristers leaving the procession and going back into the Cathedral.

Where a conviction depends upon circumstantial proof, it follows from the need for proof beyond reasonable doubt that the existence found by the Court of Appeal of a reasonable inference (or "hypothesis") consistent with innocence makes the conviction unsafe: Gant v R [2017] VSCA 104; R v Baden-Clay [2016] HCA 35, (2016) 258 CLR 308; Knight v R [1992] HCA 56, (1992) 175 CLR 495.

Particularly where the prosecution case is based upon a number of matters of circumstantial evidence, it is necessary for the appellate court to assess the whole of the case and to weigh that case as a whole: Coughlan v R [2020] HCA 15, (2020) 267 CLR 654; Fennell v R [2019] HCA 37.

The court's reasoning must in important respects conform with Jury Directions Act, see s.4A. One effect is to preclude reasoning that hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused, as had been previously allowed by e.g. Molfese v R [2018] VSCA 297; Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217: see Jury Directions Act s.42. Another effect requires to be taken into account a forensic disadvantage occasioned to an appellant as a result of delay: Jury Directions Act s.39; Pell v R [2020] HCA 12, (2020) 268 CLR 123; Tyrrell v R [2019] VSCA 52.

The court's reasoning must conform with the rule in Browne v Dunn which concerns unchallenged evidence: notes 4.

Some Victoria examples of acquittals entered: Paull v R [2024] VSCA 193; Parker (a pseudonym) v R [2024] VSCA 209; Henderson v R [2021] VSCA 312 (alleged sexual offending against child improbable); Goodfellow v R [2021] VSCA 262 (identification by inadequate circumstantial evidence); Spurritt v R [2021] VSCA 7 (sexual offence charges, several complainants, credibility issues); Hubbard v R [2020] VSCA 303 (charge of rape, issue of reasonable belief in consent); Panesar v R [2020] VSCA 79 (issues of voluntariness on charge dangerous driving causing death); Falzon v R [2019] VSCA 294 (alleged trafficking in drugs as joint criminal enterprise, circumstantial case, insufficient proof of any more than mere knowledge); Dickins v R [2019] VSCA 284 (alleged sexual offences, real possibility complainant’s recollection product of suggestion by trusted family member); Conolly (a pseudonym) v R [2019] VSCA 125 (alleged historic sexual offences, improbabilities in complainant's account, distorted thought patterns); Tyrrell v R [2019] VSCA 52 (alleged historic sexual offences, inconsistencies and improbabilities in complainant's accounts).

Some High Court examples of acquittals entered: Coughlan v R [2020] HCA 15;(2020) 267 CLR 654 Pell v R [2020] HCA 12, (2020) 268 CLR 123; Fennell v R [2019] HCA 37; GAX v R [2017] HCA 2, (2017) 91 ALJR 698; M v R [1994] HCA 63, (1994) 181 CLR 487 (alleged sexual offences, evidence of medical practitioner inconsistent with complainant, other weaknesses); Morris v R [1987] HCA 50, (1987) 163 CLR 454 (confession by accused on medical evidence prone to confabulation).

Another kind of ground part of the first category is inconsistency of verdict as between counts against an accused: MFA v R [2002] HCA 53, (2002) 213 CLR 606; MacKenzie v R [1996] HCA 35, (1996) 190 CLR 348; Sladek v R [2024 VSCA 119; Kavanagh v R [2021] VSCA 193; Star v R [2020] VSCA 331; Woods v R [2019] VSCA 259; Tyrrell v R [2019] VSCA 52. There may also be inconsistency of verdict as between separate accused at joint trial: R v Moroz [2007] VSCA 30; R v Iliovski [2002] VSCA 172, (2002) 135 A Crim R 117. There may also be inconsistency between verdict and failure to agree on verdict: Crofts v R [2018] VSCA 197; Tukuafu v R [2014] VSCA 345; Pillay v R [2014] VSCA 249, (2014) 43 VR 327.


The second category, "error " or "irregularity", and third category "other", paras (b) and (c), are the remaining bases for appeal. It is important to notice paras (b) and (c) require for successful appeal that there be "a substantial miscarriage of justice". There is a two-stage consideration. Has there been a miscarriage of justice? If so, is it a substantial miscarriage of justice? For the manner in which the latter is to be considered, see later in these notes.

As a general rule, miscarriage of justice cannot be made out unless it follows point taken by defence at trial: Xypolitos v R [2014] VSCA 339, (2014) 44 VR 423.

Various points for grounds of appeal for miscarriage of justice under paras (b), or (c), or earlier approximating provisions, have been recognised by courts. Most would today be under para (b) "error" or "irregularity"; the incompetent representation, fresh evidence and new evidence points probably would be para (c) "other". The points include the following.

1. Erroneous statement or application of rules for admissibility or exclusion of evidence. This applies to all such rules howsoever exact or not so unless the rule is of a form analogous to a discretion. An example is whether to exclude evidence by Evidence Act s.137; McCartney v R [2012] VSCA 268; (2012) 38 VR 1. In recent years, issues of this kind often have proceeded as interlocutory appeals which have the severe confines of treating rules as discretions (see above). In principle, it seems a failed defence interlocutory appeal could in the event of conviction succeed as breach of rule.

2. Subject to severe confines, error concerning exercise at trial of a judicial discretion or a decision analogous to a discretion. Judicial discretion is any part of a decision by judge or other judicial officer being individual choice as provided by statute or common law. Miscarriage of justice cannot be found in the choice of itself. For an exercise of judicial discretion to be a miscarriage of justice, it must appear that the judge has either acted upon a wrong principle, been guided or affected by extraneous or irrelevant matters, mistaken the facts, or has not taken into account some material consideration. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed: Jamieson v R [2017] VSCA 140 (discretion to permit change of plea to not guilty); Najibi v R [2016] VSCA 177, (2016) 260 A Crim R 49 (discretion to discharge individual juror); discretion to exclude alleged admissions for unfairness to accused by Evidence Act s.90; Lyon (a pseudonym) v R [2019] VSCA 251. The principles concerning review of discretion are general across various areas of law. In this conviction appeal context, commonly the principles are traced to House v R [1936] HCA 40, (1936) 55 CLR 499 see above.

3. Inadequate or erroneous judicial instruction to jury. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case and ordinarily summarise the evidence and the respective cases for the prosecution and the accused: Jury Directions Act 2015 ss.65-67. It is the responsibility of the trial judge in every jury trial (a) to decide what are the real issues in the case; (b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues; (c) to tell the jury, in the light of the law, what those issues are; (d) to explain to the jury how the law applies to the facts of the case; and (e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case: Harris (a pseudonym) v R [2021] VSCA 197; R v AJS [2005] VSCA 288.

4. Imbalanced judicial comment on facts or direction to jury, or unwarranted judicial intervention: Movel (a pseudonym) v R [2024] VSCA 183; Nenna (a pseudonym) [2021] VSCA 183; Ankur v R [2021] VSCA 110 ; Ngwabo v R [2021] VSCA 93; Gurung v R [2019] VSCA 196; Cook v R [2016] VSCA 174. Judicial comment to the jury is allowed providing it is made clear to jury that it is unbinding comment and does not convey opinion as to the proper determination of a disputed issue of fact to be determined by the jury: Pyliotis v R [2020] VSCA 134; Mareangareu v R [2019] VSCA 101; McKell v R [2019] HCA 5, (2019) 264 CLR 307.

5. Failure to discharge jury without verdict due to impugned material or incident where there has been a high degree of need for such discharge. Whether such a need exists will depend upon the circumstances as seen by the judge in the context of the trial and the nature of the impugned material which is said to be prejudicial. However, and notwithstanding the position of primacy of the judge in such matters, there may be cases where an appellate court is driven to the conclusion that the exercise of the discretion adverse to the interests of the accused has occasioned the risk of a substantial miscarriage of justice: Crofts v R [1996] HCA 22, (1996) 186 CLR 427; Doyle v R [2014] VSCA 120 (sleeping juror); Walker v R [2014] VSCA 177; R v Halliday [2009] VSCA 195, (2009) 23 VR 419.

6. Denial of procedural fairness by trial judge: R v SAB [2008] VSCA 150 and R v Nguyen [2006] VSCA 293 (direction with effect of materially changing prosecution case such as to add a new basis on which the jury could convict, in circumstances where the accused denied opportunity of meeting new case); Carson (a pseudonym) v R [2019] VSCA 317 (incidental matter juror thought of concern to trial raised with tipstaff, conveyed to trial judge and investigated, parties belatedly informed in open court).

7. Substantial possibility that jury mistaken or misled upon some material matter: Davies v R [1937] HCA 27, (1937) 57 CLR 170. An example is a collective misunderstanding of fact by parties and trial judge: NT v R [2012] VSCA 213; R v Challoner [1998] VICSC 356.

8. Incompetent defence representation at trial. The test to be applied when considering whether there was a miscarriage of justice by reason of the manner in which the trial was conducted is whether there was a rational basis for doing what was done: Stern (a pseudonym) v R [2023] VSCA 57; Mulligan (a pseudonym) v R [2017] VSCA 94; Nicholls v R [2016] VSCA 250; Hajar v R [2015] VSCA 233; Nudd v R [2006] HCA 9, (2006) 80 ALJR 614; Ali v R [2005] HCA 8, (2005) 79 ALJR 662; TKWJ v R [2002] HCA 46, (2002) 212 CLR 124.

9. Fundamental breach of duty by defence counsel subverting right to fair trial: Orman v R [2019] VSCA 163 (procedurally a Petition of Mercy pursuant to Criminal Procedure Act s.327); Mokbel v DPP (Cth) [2020] VSCA 325 (appellant's trial counsel a police informer against him).

10. Trial resulting from refusal to grant adjournment of trial to investigate a question where refusal was not reasonably open: SM v R [2011] VSCA 332.

11. Lack of legal representation resulting in an unfair trial: R v Hoang [2007] VSCA 117.

12. Inappropriate prosecution conduct at trial: Yang v R [2023] VSCA 154; Ritchie (a pseudonym) v R [2019] VSCA 202; Smith v R [2018] VSCA 139; Bugeja v R [2010] VSCA 321, (2010) 30 VR 393; R v Russo [2004] VSCA 206. The role of prosecuting counsel differs from that of an advocate representing an accused person. The prosecutor represents the State. The prosecutor is a minister of justice whose duty is to fairly and impartially place before the jury all relevant and cogent evidence, and not to obtain a conviction by any or all means. Having presented the evidence, the prosecutor should then address the jury as to how it should be viewed, but always doing so in a manner that is scrupulously fair. The prosecutor should not, for example, adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack on the accused. The prosecutor should not invite the jury to accept any argument that does not carry conviction in his or her own mind. Nor should the prosecutor put forward any argument or submission that is misleading, unfair, or otherwise unsustainable. A prosecutor’s closing address must deal with the issues in a manner which is scrupulously fair. He or she must not appeal to prejudice and must not mount an intemperate or emotional attack upon the accused.
Crown unjustifiably refusing to call witness wanted called by defence: R v Jensen [2009] VSCA 266.
Crown putting forward, for the first time in final address, a new basis on which the accused may be convicted, in circumstances where the defence has not had the opportunity of meeting the new claim: R v Howard [2005] VSCA 235.
Prosecution submissions in final address that have no evidentiary basis: Paulino v R [2018] VSCA 306 (impugning the person or the motives of defence counsel).

13. Prosecution failure to disclose material of help to accused: Roberts v R [2020] VSCA 277; notes 5.

14. Judicial bias, actual or ostensible: Aydin v R [2019] VSCA 83 and Davies v R [2019] VSCA 66, both unsuccessful but principles stated.

15. Juror bias: Webb v R [1994] HCA 30, (1994) 181 CLR 41; Platt v R [2018] VSCA 276; Zhu v R [2013] VSCA 102; R v ALH [2003] VSCA 129, (2003) 6 VR 276.

16. Wrongful joinder of counts against one accused within a single indictment: Fleming (a pseudonym) v R [2021] VSCA 206 (interlocutory appeal). Wrongful joinder of more than one accused within a single indictment. Joinder of trial against more than one accused shown inappropriate by subsequent events at trial: R v Alexander and McKenzie [2002] VSCA 183, (2002) 6 VR 53; R v Demirok [1976] VicRp 19, [1976] VR 244.

17. Procedural error. Jury separation without required oath or otherwise irregular: R v Appleby (1996) 88 A Crim R 456; R v Chaouok [1986] VicRp 70, [1986] VR 707. Unlawful adding of a replacement juror to existing jury: Pollock v R [2020] VSCA 218.

18. Factual finding of trial judge upon a voir dire not reasonably open and of a vitiating kind: Willis v R [2016] VSCA 176.

19. Civil proceeding about the very subject matter of a criminal trial having been already heard and determined, causing prejudice: Lucciano v R (a pseudonym) [2021] VSCA 12.

20. Fresh evidence. This may consist of evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered and raises a significant possibility that the jury might have acquitted if the relevant evidence had been led at trial: Eastman v R [2000] HCA 29, (2000) 203 CLR 1; Mickelberg v R [1989] HCA 26, (1989) 167 CLR 259; Hague v R [2019] VSCA 218; Harrington v R [2017] VSCA 307; Coleman v R [2011] VSCA 301. It may be fresh evidence going to an issue of unfitness to be tried: Camurtay v R [2020] VSCA 221. It may be fresh evidence showing other miscarriage of justice: Mokbel v DPP (Cth) [2020] VSCA 325.

21. New evidence: This consists of evidence which was available at the trial or which could, with reasonable diligence, have then been discovered and which shows innocence, or a reasonable doubt as to guilt: Bowden (a pseudonym) v R [2017] VSCA 46; Rich v R [2014] VSCA 126, (2014) 43 VR 558.

22. Overlooked exculpatory evidence: Hartley (a pseudonym) v R [2020] VSCA 62 (expert report possessed by defence solicitor's firm unprovided to trial counsel).

23. Combination or aggregation of defects: Gurung v R [2019] VSCA 196; Meyer v R (a pseudonym) [2018] VSCA 140; R v Morrow [2009] VSCA 291, (2009) 26 VR 526; R v MCG (No) 3 [2005] VSCA 262; R v Kotzmann [1999] VSCA 27, [1999] 2 VR 123.


For a consideration where there has been miscarriage of justice whether it is substantial miscarriage of justice: Awad v R [2022] HCA 36; Baini v R [2012] HCA 59, (2021) 246 CLR 469. 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. With respect to ss. 276(1)(b) and (c), 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. Those paragraphs also cover cases where there has been a serious departure from the prescribed processes for trial. 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. 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. 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. 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. In assessing inevitability, the Court of Appeal must decide that question on the written record of the trial. In cases 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. See also for example Orreal v R [2021] HCA 44.
The circumstances which give rise to the application of the principle concerning serious departure from the prescribed processes for trial are a rarity: Saricayir v R [2018] VSCA 319. Example Pollock v R [2020] VSCA 218 (jury unlawfully constituted).


Remedies upon successful appeal. A new trial may be ordered, acquittal be entered or conviction for a lesser alternative offence be entered: Criminal Procedure Act s.277. Acquittal is in practice normal for an appeal of the first category, exceptional for an appeal of the second category. The power to order a new trial extends to ordering a new trial for an offence for which the appellant could have been convicted at the first trial, including for example a lesser alternative offence provided by statute: AJS v R [2007] HCA 27, (2007) 235 CLR 505. The factors which should influence an appellate court in exercising such a discretion will depend basically on all the facts of each individual case, the circumstances which surrounded the trial, the nature of the miscarriage of justice, the strength of the prosecution case and a full and fair balancing of the public interest and the personal interests of the successful appellant. Such considerations are not exhaustive. See Brown v R [2020] VSCA 26; R v Poduska [2008] VSCA 147; R v Wei Tang [2007] VSCA 144, (2007) 16 VR 454; R v Nicoletti [2006] VSCA 175, (2006) 164 A Crim R 81; R v Redmond [2006] VSCA 75; Edwards v R [1993] HCA 63, (1993) 178 CLR 213. See also R v Thomas (No 3) [2006] VSCA 300 and R v Thomas (No 4) [2008] VSCA 107 (fresh evidence since trial). Examples of conviction for lesser alternative offence: Freeburn v R [2020] VSCA 155; Astbury v R [2020] VSCA 132; Aston v R [2019] VSCA 225.


There is a right of second or subsequent appeal against conviction where there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal: Criminal Procedure Act ss.326A-326E; Baker v R [2022] VSCA 196 Lewers (a pseudonym) v R [2021] VSCA 351 Roberts v R [2020] VSCA 277. Otherwise the Court generally is functus officio i.e. without jurisdiction to re-open a criminal appeal which it has already determined on the merits; there may be such a jurisdiction if the decision has been vitiated by fraud or some other circumstances which rendered its decision a nullity: R v McNamara [1996] VICSC 46, [1997] 1 VR 257; R v GAM [2003] VSCA 185. There is possible remedy by way of Petition of Mercy pursuant to Criminal Procedure Act s.327; Orman v R [2019] VSCA 163; Tognolini v R [2015] VSCA 222; R v Alexander [2006] VSCA 142; R v GAM [2005] VSCA 23.


Judge's report on appeal: Criminal Procedure Act s.316; Zogheib v R [2015] VSCA 334; NJD v R [2010] VSCA 84.


Order for production of documents, exhibits or other things: Criminal Procedure Act s.317. For example police documents that would reveal whether a relevant person was police informer: Zirilli v R [2021] VSCA 2.


Reference determination permits the Court to refer to the Trial Division constituted by a judge, for the making of a reference determination, any specified issue or matter arising on an application for leave to appeal to which that section applies: Criminal Procedure Act s.319A; Mokbel v R [2022] VSCA 83; Karam v R [2022] VSCA 23.


Extension of time for appeal or leave against jury verdict of guilty, or against sentence: Criminal Procedure Act s.313. The Court has regard to both the reasons for delay and the merits of the appeal, but these two considerations are not necessarily evenly balanced. Where the merits of the proposed appeal are very poor, even a satisfactory explanation for the delay might not justify an extension. On the other hand, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the Court may incline towards granting an extension: Madafferi v R [2017] VSCA 302 Ludwig v R [2015] VSCA 35; Roth (a pseudonym) v R [2014] VSCA 242; Bowling v R [2013] VSCA 87.


Director's Reference. There is provision for prosecution reference of points of law to the Court of Appeal after acquittal at trial or upon County Court appeal, though the acquittal cannot be disturbed. These are known as a Director's Reference: Criminal Procedure Act s.308. In practice, very few are brought. An example is DPP Ref No1 of 2019 [2020] VSCA 181.

TO COURT OF APPEAL AGAINST CONVICTION BY COUNTY COURT OR SUPREME COURT AFTER PLEA OF GUILTY

In this circumstance, a useful but not exhaustive guide to the kinds of situations in which appellate intervention of the Criminal Procedure Act s.276 kind is warranted is that it should appear (1) that the appellant did not appreciate the nature of the charge or did not intend to admit guilt, or (2) that upon the admitted facts could not in law have been convicted of the offence charged; for example imprudent and inappropriate advice from counsel may lay the foundation : Gurappaji v R [2018] VSCA 187.

TO COURT OF APPEAL AGAINST SENTENCE BY COUNTY COURT OR SUPREME COURT

These are appeals concerning sentence first imposed by County Court or Supreme Court after jury trial or plea of guilty.

Criminal Procedure Act Part 6.3; Supreme Court (Criminal Procedure) Rules; Practice Note 2019-SC CA 1. The application if by a sentenced person initially is under Criminal Procedure Act s.278 for leave to appeal which usually is set down for a separate hearing, or if so elected by the applicant, determined on the papers without an oral hearing. Where it is held arguable that there has been a sentencing error, even with respect to an individual sentence, leave must be granted unless the judge is satisfied that there is no reasonable prospect that a less severe sentence would be imposed on appeal: Ludeman v R [2010] VSCA 333.

To succeed on the appeal, it is necessary to establish matters such as specific error of statute, error of principle, weighting of sentencing factor not reasonably open, finding of sentencing facts not reasonably open, disparity with co-offenders or manifest excess of sentence: R v Taylor and O'Meally [1958] VicRp 46, [1958] VR 285. Another possible basis is procedural unfairness: Lennon v R [2017] VSCA 85; R v Alexandridis [2008] VSCA 126.

Manifest excess of sentence is a non-specific error. Appellate intervention on this ground is not justified just because a sentence is markedly different from other sentences that have been imposed in other cases; the sentence imposed must be explicable only on the ground of a misapplication of principle, even if the statement of reasons of the sentencing judge does not make such misapplication apparent: Wong v R [2001] HCA 64, (2001) 207 CLR 58. Appellate intervention on the ground of manifest excess is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle: Quy Nguyen v R [2017] VSCA 127; R v Pham [2015] HCA 39, (2015) 256 CLR 550.

A complaint that too much or too little weight was given to a particular matter in sentencing is not a ground of specific error. Such a complaint can only be considered under a ground that the sentence was manifestly excessive: Smith v R [2020] VSCA 159; Alexander (a pseudonym) v R [2021] VSCA 217.

The remedy, if error had been shown and the court is satisfied a different sentence should be imposed, is re-sentence, or remittal to the County Court: Criminal Procedure Act s.281, s. 286. Re-sentence may be by more severe sentence but the court must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces such possibility: Criminal Procedure Act s. 281.

There is Court of Appeal power on a sentence appeal to give or review a guideline judgment: Sentencing Act ss. 6AA-6AG. This may set out (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 which a sentencing court may use to reduce the sentence for an offence; (e) the weighting to be given to relevant criteria; (f) any other matter consistent with the principles contained in this Act.

In the Court of Appeal, fresh evidence which relates to events which have occurred since sentence will be received if it demonstrates the true significance of facts in existence at sentence to be harsher to the offender than had then been understood; such fresh evidence may vitiate the sentencing discretion: Price (a pseudonym) v R [2018] VSCA 54 (terminal illness undiagnosed at time of sentence); Fedele v R [2017[ VSCA 363 (undiagnosed dementia at time of sentence); Redenbach v R [2017] VSCA 2 (sentenced without awareness of parole cancellation on earlier sentence); Mileto v R [2014] VSCA 161 (forfeiture); Spence v R [2013] VSCA 197 (ill health); Marsh v R [2011] VSCA 6 (victim of offending subsequently forgiving); R v Cochrane [2008] VSCA 60 and R v Mourad [2008] VSCA 4 (after sentence cancellation of parole on another matter); R v Dang [2009] VSCA 183 and R v McLeod [2007] VSCA 183, (2007) 16 VR 682 (forfeiture); R v Alashkar [2007] VSCA 182 (after sentence cancellation of parole on another matter); R v Jahanara [2006] VSCA 260 (lesser injuries to victim); R v Nguyen [2006] VSCA 184 (hardship to family); R v Wooden [2006] VSCA 97; R v SH [2006] VSCA 83 (mental illness and need for protection); R v Pividor [2002] VSCA 174 (protection required in prison); R v Spagnolo [2000] VSCA 126, (2000) 114 A Crim R 98 (illness); R v Rostom [1995] VICSC 213, [1996] 2 VR 97 (protection required in prison);R v Eliasen [1991] VicSC 357, (1991) 53 A Crim R 391 (illness). Outside of these principles is evidence which does no more than show the working out of matters that were, in general terms, recognised and taken into account at the time of sentence: R v Jones [2006] VSCA 266; R v McLachlan [2004] VSCA 87, (2004) 8 VR 403.

There is a discretion to receive evidence that ought to have been but was not before the sentencing judge, the evidence being admitted to avoid a miscarriage of justice: Loftus v R [2019] VSCA 24; Allouch v R [2018] VSCA 244; Betts v R [2016] HCA 25; (2016) 258 CLR 420; Nicholson v R [2018] VSCA 146.

For prosecution appeals against sentence, the main provisions are Criminal Procedure Act ss.287-294. The right conferred upon the Director of Public Prosecutions to appeal against sentence is conditioned upon the Director being satisfied that there was an error in the sentence imposed, that a different sentence ought to have been imposed and that it is in the public interest that an appeal be brought; if the Court finds that there is an error and that a different sentence should be imposed, it must allow the appeal and if either of these requirements is not met, it must dismiss the appeal; the need to be satisfied that a different sentence should be imposed serves to preserve a residual discretion to dismiss an appeal even where error is identified: DPP v Silivaai [2023] VSCA 19. In the event that prosecution appeal is allowed, the Court must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate taking into account any factor, other than double jeopardy, that it regards as relevant to re-sentencing the offender: s.290; DPP v Karazisis. Manifest inadequacy: DPP v White [2020] VSCA 37.

The Court of Appeal has no power to entertain further application for leave to appeal against sentence after previous application has been refused on the merits: Visser v R [2023] VSCA 10

If current sentencing practices for a type of offence are found manifestly inadequate and needing uplift, the court is to impose a sentence that is just in all the circumstances unconstrained by the current sentencing practices: DPP v Dalgliesh (a pseudonym) [2017] HCA 41.

ORDER 56 JUDICIAL REVIEW

Supreme Court (General Civil Procedure) Rules order 56. This is a course available both to criminal and non-criminal matters, though of narrow application and relatively uncommon. Judicial review may lie to correct inferior courts (and tribunals) which commit jurisdictional error or breach of natural justice. It also may lie to correct inferior courts (and tribunals) which commit error on the face of the record or have been subject of fraud. The record includes reasons: Administrative Law Act s.10; Lianos v Inner Eastern Health Care Networks [2001] VSCA 53; Flynn v DPP [1998] 1 VR 322; Kuek v Wellens [2000] VSC 326; Sidebottom v County Court [2001] VSC 18.

Unless excluded by Commonwealth or other statute, the remedy is in the nature of certiorari (quashing an order), mandamus (requiring action) and prohibition (preventing action): Supreme Court (General Civil Procedure) Rules order 56; Administrative Law Act; Craig v South Australia[1995] HCA 58, (1995) 184 CLR 163; Returned Services v Liquor Licensing Commission [1999] VSCA 37, [1999] 2 VR 203; Perkins v County Court of Victoria [2000] VSCA 171. There is also common law remedy by declaration: Ainsworth v Criminal Justice Commission [1992] HCA 10, (1992) 175 CLR 564; Coleman v DPP & County Court of Victoria [2002] VSCA 116; Rozenes v Beljajev [1995] VicRp 34,[1995] 1 VR 533.

One breach of natural justice is bias, actual or ostensible: Antoun v R [2006] HCA 2, (2006) 80 ALJR 497; Webb R [1994] HCA 30, (1994) 181 CLR 41; Livesey v NSW Bar Association [1983] HCA 17, (1983) 151 CLR 288. Importance of requesting disqualification or objecting: Vakuata v R [1989] HCA 28, (1989) 167 CLR 568; Humphrey v Wills [1989] VicRp 42, [1989] VR 439; Rozenes v Kelly [1996] VicRp 20, [1996] 1 VR 320; Willis v Magistrates' Court (1996) 89 A Crim R 273.

An order at committal proceedings for Victorian offences committing for trial or refusing to commit is ministerial, not judicial, and not amenable to certiorari: Potter v Tural [2000] VSCA 227.

It has become accepted, at least implicitly, that the County Court is an inferior court and not made otherwise by County Court Act s.36A. There is however some uncertainty whether certiorari can ever lie in County Court criminal proceedings which are between arraignment and conclusion on an issue which ultimately would be exposed to Court of Appeal criminal jurisdiction: McGuire v DPP [2001] VSC 11. Note however Administrative Law Act s.12 by which any proceeding may be removed into the Supreme Court notwithstanding any provision to the contrary in an Act passed before such commencement.

There remains a discretion not to grant certiorari, mandamus or prohibition where a basis is made out. One reason tending against grant is where there is provision for an alternative and preferable remedy: Kuek v Victoria Legal Aid [2001] VSCA 80. Another reason tending against grant is the undesirability of fragmenting criminal trial proceedings: Iorlano v R [1983] HCA 43, (1983) 151 CLR 678; Rozenes, ex parte Burd [1994] HCA 11; (1994) 68 ALJR 372; Phung v Victoria Legal Aid [1999] VSC 1.

Order 56 review is also available against public bodies or officials other than inferior courts and tribunals which act beyond lawful power i.e. ultra vires or err at law in the exercise of power: for an example in the field of penal administration see Minister v Certain Children [2016] VSCA 343. Such error at law may for instance be failure to take into account relevant considerations: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister v Certain Children above. Another example of error at law is exercise of power for improper purpose: R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170.

Order 56 proceedings are usually upon affidavit.

An Order 56 decision is open to appeal to the Court of Appeal: see Supreme Court Act s.10, Part 2 Division 2; Supreme Court (General Civil Procedure) Rules.

TO HIGH COURT

Loss in the Court of Appeal (even for the prosecution) is open to High Court appeal. There is though formidable special leave requirement before the substantive issues will be heard: see Constitution s.73, Judiciary Act Part V Division 1; especially ss.35, 35A. In considering whether to grant an application for special leave to appeal, 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 pronounced involve 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 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.

Special leave applications are often heard separately, typically in Melbourne if of Victoria origin.

Remitter from High Court to Court of Appeal: R v Weiss (No 2) [2006] VSCA 161.

Don Just
Barrister Victorian Bar retired list
Melbourne, Australia

www.justd.com

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