Appeal to the Supreme Court on a Question of Law
Under section 272(1) of the Criminal Procedure Act 2009 (Vic) (the CPA), a party involved in a criminal proceeding (excluding a committal proceeding) in the Magistrates’ Court has the right to appeal to the Supreme Court. This appeal can only be made on a question of law (i.e. a legal issue, not a factual issue) from a final order made by the Magistrates’ Court. If there is an appeal to the Supreme Court on a question of law, no appeal may be entered at the County Court (s273 of the CPA).
If you are considering an appeal on a question of law to the Supreme Court, it is therefore critical to consider whether it may be preferable to appeal to the County Court against sentence or conviction in the first instance. It is very important to speak to an experienced criminal lawyer before appealing to the Supreme Court on an error of law.
Determining whether an appeal to the Supreme Court on an error of law is appropriate usually involves considering of the following matters:
- Did the court apply the correct legal test?
- Was there any evidence to support a finding of fact made?
- Did the facts found, fall within the statute properly construed.
In relation to the second proposition, the issue of whether there was any evidence to support a finding of fact depends on whether there was evidence that a Magistrate, as a reasonable person, could rely upon to reach the conclusion. Specifically, the question is whether the finding was open to the Magistrate under the law. However, it is not sufficient to argue that the decision was against the weight of the evidence. The appellant must show that the Magistrate took an irrelevant factor into account or failed to take into account a relevant factor, erred in the use of discretion or improperly applied the law to the facts. It is not sufficient to argue that the decision was against the weight of the evidence.
One example in which a Magistrate improperly excluded evidence amounting to an error of law is in the case of Engebretson v Bartlett. In that case, the accused was convicted and sentenced to a term of imprisonment for recklessly causing serious injury. The accused relied on the defence of self-defence in relation to the offending conduct. However, the Magistrate excluded important evidence that the accused intended to lead from a witness that painted a different picture of the circumstances leading to the alleged offending and how the fight started. The question for the Court on appeal was, did the Magistrate err in ruling that the evidence was inadmissible? The relevant finding by the Supreme Court, in that case, was that the Magistrate did make an error of law, and the matter was remitted to the Magistrates’ Court before a different Magistrate for redetermination.
Seeking leave to appeal on a question of law
There are a number of complicated processes and strict time frames applying to an appeal to the Supreme Court on an error of law.
- Notices must be filed within 28 days of the finding in the lower court.
- Any notices filed after 28 days from the date the final order was made, will be considered leave to appeal outside of time.
- A number of matters must be addressed in the notice of appeal.
- The other party must be notified and served.
- Affidavits must be filed with the appropriate exhibits attached.
Appeals are an extremely complicated and specialist area of the law and require a specialist lawyer to assist.
After hearing and determining the appeal:
If the Supreme Court is satisfied that an error in law was made, the Court may:
- Remit the matter to the Magistrates’ Court (that is, have it returned to the original court for a rehearing).
- Deal with the matter itself, depending on the state of the evidence and whether it is in the interests of justice.
- Dismiss the appeal if satisfied that the accused did not lose a chance of acquittal that was open. In doing so, the Court may undertake its own evaluation of evidence and take into account the natural limitations involved in such a review.
If you feel that an injustice has occurred in Court and you would like advice on the prospects of an appeal in your case, please contact our office so we can further investigate your concerns.
As hopefully demonstrated by this article, this is an extremely technical area of the law that requires a specialist appeal lawyer to assist.