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, except 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 a decision is appealed 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 to the Supreme Court on a question of law, it is critical to consider whether it may be preferable to appeal to the County Court against your 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 consideration 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. It is not sufficient to argue that the decision was against the weight of the evidence. That is, the appellant must show that the Magistrate:
- took an irrelevant factor into account;
- failed to take into account a relevant factor;
- erred in the use of discretion; or
- improperly applied the law to the facts.
Case Study: Error of law example
One example of a Magistrate improperly excluding evidence amounting to an error of law is in Engebretson v Bartlett. In that case, the accused was convicted and sentenced to 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
Appeals to the Supreme Court on a question of law involve several complex procedures and strict deadlines:
- Notices of appeal must be filed within 28 days of the lower court’s final order.
- If filed later, they are considered appeals outside the normal time frame and require leave to proceed.
- A number of matters must be addressed in the notice of appeal.
- The other party must be formally notified and served with the appeal notice.
- Affidavits must be filed with the appropriate exhibits attached.
Appeals are a complex and specialised area of law that requires the expertise of a specialist lawyer.
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 (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 the Court is satisfied that the accused did not lose the 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 this article hopefully demonstrates, this is an extremely technical area of the law that requires an appeal lawyer’s assistance.
