Appeal to the Supreme Court on a Question of Law
Under section 272(1) of the Criminal Procedure Act 2009 (Vic), a party to a criminal proceeding in the Magistrates’ Court(excluding a final order made in a committal hearing) may appeal to the Supreme Court on a question of law, from a final order of the Magistrates’ Court.
If you are considering an appeal on a question of law to the Supreme Court,it is incredibly important that you first consider whether it would be more beneficial to proceed to the County Court on an appeal against sentence or an appeal against conviction. This is because once you have appealed under s272, you have then abandon any right to appeal to the County Court in relation to that same proceeding (section 273 on the Criminal Procedure Act). For this reason it is very important to speak to an experienced criminal lawyer prior to appealling 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 some 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 question of whether there was any evidence to support a finding of fact hinges on establishing if there was any evidence upon which the magistrate might, as a reasonable person, come to the conclusion reached,if it were allowed or if the finding was open.
The appellant must show that the magistrate improperly excluded evidence, erred in the use of discretion or improperly applied the law to the facts. It is not enough to argue that the decision was against the weight of the evidence.
One example where a magistrate improperly excluded evidence amounting to an error of law is in the case of Engebretson v Bartlett [2007]. In that case the magistrate convicted the accused and sentenced him to a term imprisonment in relation to recklessly causing serious injury. The accused was running the defence of self-defence. The magistrate excluded important evidence that the accused wanted to lead from a witness that painted a different picture of the circumstances around how the fight had started.The question for the court was, did the magistrate err in ruling that evidence of was inadmissible? The finding in that case by the Supreme Court, for a number of reasons outside the scope of this article, was that the magistrate did in fact err and in the circumstances the matter should be remitted to the magistrates court for redetermination, before a different magistrate.
Seeking leave to Appeal on a Question of Law
There are a number of complicated processes and strict time frames that need to be observed when initiating 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
It is an extremely complicated and specialist area of the law and requires a specialist lawyer to assist.
After hearing and determining the appeal:
If the Supreme Court is satisfied that an error in law has been made, the court may
- remit the matter to the Magistrates’ Court (to remit the matter is to have it returned to the original court for rehearing)
- deal with the matter itself, depending on the state of the evidence and the needs of justice.
- being satisfied that the accused did not lose a chance of acquittal that was open,dismiss the appeal. In doing so the court may undertake its own evaluation of the evidence on the record and must take into account the natural limitations involved in such a review.
If you feel that an injustice has occurred in the inferior court and you would like advice on a technical aspect of your case, then you should contact our office for an appointment 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.
