Appeals to the Court of Appeal

Who has a right of appeal?

Appeals to the Court of Appeal can be initiated by:

• A defendant appealing against the conviction, sentence or both. Generally, the court’s permission (i.e. a leave application) is required.
• The Director of Public Prosecutions appealing against sentence. Known as Crown appeals, these do not require leave to appeal.
• Any party against interlocutory decisions made by a trial judge during proceedings in the Supreme Court or County Court. Application to the trial judge to certify the interlocutory appeal before leave to appeal can be sought is necessary.

Time limits to appeal to the Court of Appeal

Leave to appeal a conviction or sentence must be sought by application filed following the court’s practice directions within 28 days from the sentencing date (ss 275 and 279 of the CPA).

Different time limits apply to interlocutory appeals (i.e. from 2 to 10 days), depending on the stage of criminal proceedings and whether the trial judge decides to certify the interlocutory appeal under sections 296(2) and 298(1) of the CPA.

Applying for extensions of time

Seeking to appeal a sentence or conviction outside the 28-day time limit requires an application for an extension. The application must be supported by an affidavit addressing the reasons for not filing within time, and an extension will only be granted with an adequate explanation.

Appeal against conviction

Applying to appeal against a conviction to the Court of Appeal requires a notice of application for leave to appeal against conviction to be filed. The notice must specifically and concisely set out the grounds relied upon, listing the authorities and materials to support the appeal. For example, a schedule of relevant evidence and court transcripts is required if an appeal is initiated on the grounds that the conviction was unreasonable or not supported by the evidence.

Grounds for an appeal against conviction may include:

• The verdict reached by the jury was unreasonable or was not supported by the evidence.
• There was an error or irregularity in the trial resulting in a substantial miscarriage of justice, such as due to wrongful admission of evidence or misdirection to the jury by the trial judge.
• There was a substantial miscarriage of justice for any other reason, such as due to incompetency of trial counsel or a ‘combination of errors’ in the trial process.

If a guilty plea was originally entered, grounds for an appeal against a conviction may also be available in ‘exceptional circumstances’. The Court of Appeal may make a finding of exceptional circumstances amounting to a substantial miscarriage of justice if, for example:

• The accused could not appreciate the serious nature of the charges;
• The accused would not have otherwise been found guilty upon the agreed facts;
• The accused entered a plea of guilty due to intimidation, fraud or duress.

The Court of Appeal may also grant leave to appeal a second or subsequent appeal against conviction under section 326A if it is satisfied that ‘fresh’ and ‘compelling’ evidence should be considered in the interests of justice (s326C) or if there was a substantial miscarriage of justice (s326D).

Appeal against sentence

When considering the prospects of an appeal against a sentence, it is critical to note that the court has the power to increase the sentence (subject to an obligation to give a warning) as well as reduce the sentence under sections 281(3) and 282(1)(a) of the CPA.

Applying to appeal against a sentence to the Court of Appeal requires a notice of application for leave to appeal against the sentence to be filed. The notice must include the grounds of appeal, a written case, and list of authorities and sentencing remarks relied upon to support the appeal.

In determining whether to grant leave to appeal against a sentence, the Court of Appeal considers whether a different and less severe sentence was warranted in the circumstances of the offending.

The Court of Appeal reviews the sentence to determine whether a sentencing error was made in the originating court. The court may identify a specific error in the sentence, such as a failure to have regard to sentencing factors required by the law, or an error may be assumed on the basis that the sentence originally imposed was unreasonable or unjust.

The court’s considerations include the following:

• The maximum sentence for the offence available to the original sentencing judge.
• How sentencing discretion was exercised by the original sentencing judge.
• Sentences for other similar cases.
• The seriousness of the offence.
• The personal circumstances of the offender.

If the Court of Appeal determines that an error was made, an appeal will be allowed, the original sentence set aside, and a new sentence imposed. The matter may also be sent back to the originating court for resentencing.

Appeal against sentence by the prosecution

The Director of Public Prosecutions (DPP) does not generally need to seek leave to appeal a sentence and can appeal a sentence if it is in the interests of justice, a sentencing error was made, and a different sentence should be imposed.

Abandoning an appeal

An appeal (including any application for leave or an extension of time) may be abandoned before the hearing is commenced by filing a notice of abandonment (s314 CPA). A notice of abandonment must be filed by the applicant (or appellant), and the appeal or application is taken to be dismissed on the date the notice is filed.

Appeals to the Court of Appeal: Not to be taken lightly

There is a huge amount of work that must be completed to file a leave application. Trial transcripts must be obtained for an appeal against conviction, and sentencing remarks must be obtained for an appeal against sentence. Extensive instructions must be sought concerning both applications.

The practice directions of the Court of Appeal have recently changed, and fully developed written submissions are required. These must be submitted to the Court of Appeal registry within 28 days to lodge the application.

If they are not submitted within the prescribed time under section 313 of the CPA, an affidavit must be filed with the leave application, seeking an extension of time to submit the leave application. Still, there is no guarantee that the application to submit out of time will be granted.

You must seek legal advice when appealing a decision. It is a technical area of law and needs to be handled by criminal lawyers with experience in the appellant courts.

Why you need a specialist appeals lawyer

Before we can advise on the merits of an appeal in your circumstances, consideration must be given to all material, including transcripts, exhibits, proceedings recordings, sentencing remarks, reasons for the sentence, and information available to the police and the defence. The appeals process is highly technical. Seek advice from one of our experienced appeals lawyers.

Successful Court of Appeal cases handled by Dribbin & Brown

• Pan v The Queen [2020] VSCA 42 (10 March 2020)
• DPP v Blackberry [2019] VSCA 269 (21 November 2019)
• Giri v The Queen [2022] VSCA 64 (12 April 2022)
• DPP v Keller (a pseudonym)[2021]VSCA 334 (3 December 2021

See our recent case study for Giri v The Queen for an example of a Court of Appeal matter handled by Dribbin and Brown Lawyers.