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Appeals to Court of Appeal

Appeals in the Court of Appeal proceed by establishing error. This court will not hear the entire case all over again (called de novo). Instead, the applicant must establish that there has been an error in the conviction or the sentence imposed.

Appeals to the Court of Appeal are governed by Part 6.3 and 6.4 of the Criminal Procedure Act 2009 (Vic) and the Supreme Court (Criminal Procedure) Rules.

See also Crown Appeals.

Eligibility for a grant of aid

A person will be eligible for a grant of legal assistance if:

  • the person meets the means test
  • the person received a sentence of imprisonment (unless the person is a child)
  • there are reasonable grounds for appeal, and
  • there are reasonable prospects that the court will impose a lesser sentence, or
  • it is reasonable to provide legal assistance having regard to all of the circumstances including any benefit or detriment that may accrue to the applicant or the public (in conviction appeals).

See VLA help.

Role of trial/plea counsel

Counsel and/or instructing solicitors must confer with the offender and convey counsel’s view of the prospects of success of an appeal within 7 days of conviction or sentence. This advice should be confirmed in writing as soon as practicable. The advice should draw attention to the power of the court to increase the sentence as well as reduce it.

If counsel advises an appeal, it is assumed that they will be briefed to prepare and sign the grounds of appeal and accompanying written case.

Stages of an appeal

In most circumstances there will be two stages to an appeal in the Court of Appeal:

  • 1. Leave to appeal
  • 2. Appeal hearing.

Leave to appeal is ordinarily determined by one judge sitting alone in chambers, considering the written materials provided by the parties.

If leave is granted, the matter will proceed to an appeal hearing before 2 or more judges.

If leave is not granted, the applicant may renew their application before 2 or more judges.

In some circumstances, the court may list the leave application and the appeal to be heard at the same time (rule 2.09.01).

See Order 2 Part 2 Supreme Court (Criminal Procedure) Rules 2017 (Vic).

Time limit

An appeal for leave to appeal must be filed within 28 days of their conviction or sentence.

Time limits exist to provide finality to litigation. Whether an extension of time is granted will depend on an assessment of the interests of justice. An extension of time will not ordinarily be granted unless there is an adequate explanation for failing to file within time.

Any application for extension of the 28-day period must be supported by an affidavit stating the reasons for not filing the application within time. The extension of time documents must be filed with the application for leave to appeal.

See:

Grounds of appeal

The grounds of appeal must be prepared with sufficient precision to enable a registrar (and subsequently the court) to readily identify the issues and matters that are relied upon. The grounds of appeal are filed in the Notice of Application for Leave to Appeal.

See r. 2.05(4)—Supreme Court (Criminal Procedure) Rules 2017 (Vic).

Written case

When filing a notice of application for leave to appeal, the applicant must also file a written case in support of the application. The purpose of the written case is to enable the Court to understand the facts and issues in the case and to decide the application for leave to appeal without oral argument. The written case must be concise. It must not exceed 10 A4 pages of 12 point type, 1½ line spacing including footnotes of no less than 10 point type.

See r. 2.05—Supreme Court (Criminal Procedure) Rules 2017 (Vic).

Rejection of the application

Where the requirements regarding the grounds of appeal and/or written case are not complied with, the application for leave to appeal will be deemed unacceptable and rejected by the Registrar. Any rejection will not prevent time from continuing to run against the applicant.

See rr. 2.03, 2.13—Supreme Court (Criminal Procedure) Rules 2017 (Vic).

Appeal Hearing

At the appeal hearing, the Court hears oral argument from the applicant and a response from the prosecution. The time for argument may be limited by direction of the Registrar or by order. The aim of the Court is to deliver judgement shortly after oral argument concludes where possible.

Orders the Court can make

On appeal, the court may:

  • grant the appeal and make orders it deems appropriate, including substituting their own sentence, remitting the matter to the court below for re-hearing or re-sentencing, or leaving the sentence in place
  • refuse the appeal. In this instance, the decision of the court below will stand.

Bail pending appeal in the Court of Appeal

An application for bail pending appeal must be served on the Crown at least 24 hours before the application is filed with the court to enable the crown to make submissions about the application and any conditions of bail.

Most applications for bail pending appeal will be determined by a single judge (rule 2.38).

An application for bail pending appeal will not ordinarily be considered before the applicant’s grounds of appeal and accompanying written case have been filed.

When considering whether to make a grant of bail, the judge will consider:

  • the physical or mental health of the applicant
  • any vulnerability of the person, including youth or advanced age
  • whether the person is an indigenous person
  • the strength of the grounds for appeal advanced by the applicant.

See s. 310—Criminal Procedure Act 2009 (Vic) and Supreme Court—Practice Note 8 of 2016.

Crown appeals

The Office of Public Prosecutions may bring an appeal against an offender where they consider the sentence was ‘manifestly inadequate’ and where it is in the public interest that they do so.

They may also appeal to the Court of Appeal, under some circumstances, if no prison sentence imposed for a category 2 offence by the appellate court if they believe that:

  • this was made in error and that a different sentence should be imposed, and
  • it is in the public interest to appeal.

See Part 6.3, Division 3—Criminal Procedure Act 2009 (Vic)(opens in a new window)..

To the extent necessary, the procedures applying to offender-initiated appeals will apply to Crown appeals.

Eligibility for a grant of aid

A person will be eligible for a grant of legal assistance for a crown appeal if they:

  • meet the means test and
  • have received or are at risk of receiving a sentence of imprisonment on appeal.

See:

Grants of assistance for Court of Appeal matters

VLA may provide a grant of assistance where the applicant meets the means test and the relevant Court of Appeal guideline. VLA will ordinarily rely upon the opinion of counsel at first instance when making a decision about a grant of legal aid, although it may review the matter for merit before approving aid.

The person should submit an application for aid to the Assignments Criminal Law to get a grant of assistance or second opinion about the advice of counsel at first instance. They must provide any relevant information and documentation and an indication of the basis upon which they wish to appeal.

See VLA help and Forms.

Second or subsequent appeal against conviction

From 4 December 2019, a person who has been convicted of an indictable offence may seek leave to appeal to the Court of Appeal if they have exhausted all of their appeal rights, provided the Court of Appeal grants leave to appeal. Court must be satisfied that there is fresh and compelling evidence and appeal should be considered in the interests of justice. This process can include a summary offence, but only if it is related to the indictable offence that is the subject of the appeal. The court may choose to stay the conviction pending the outcome of the appeal. A prisoner who applies for a subsequent appeal can also apply for bail pending the outcome.

See ss. 326A, 326B, 326C—Criminal Procedure Act 2009 (Vic)(opens in a new window).

More information

Legislation

Criminal Procedure Act 2009 (Vic)

  • Part 6.3—appeals from County Court or Trial Division of Supreme Court to Court of Appeal
    • s. 275—how an appeal is commenced
    • s. 287—right to appeal, inadequate sentence
    • s. 290A—right of appeal against certain sentences imposed by the County or Supreme Court on appeal from the Magistrates' Court
    • s. 313—extension of time for filing or serving notice of appeal or notice of application for leave to appeal
    • s. 326A—second or subsequent appeal against conviction for an indictable offence
    • s. 326B—how to apply for a second or subsequent appeal against conviction
    • s. 326C—when court of appeal may grant leave for a second or subsequent appeal

See Criminal Procedure Act 2009 (Vic)(opens in a new window).

Supreme Court (Criminal Procedure) Rules 2017 (Vic)

  • Order 2—Criminal appeals
  • r. 2.03(2)—judicial power to dismiss an application for leave to appeal
  • r. 2.05—application for leave to appeal against conviction or sentence
  • r. 2.06—application may be determined by a single judge
  • r. 2.10—application may be treated as an appeal
  • r. 2.13(1)—registrar's power to refer an application or appeal to be dismissed
  • r. 2.22—application for extension of time

See Supreme Court (Criminal Procedure) Rules 2017 (Vic)(opens in a new window).

Case

Kentwell v The Queen [2014] HCA 37; 2014 CLR 601

See Kentwell v The Queen [2014] HCA 37 (9 October 2014)(opens in a new window).

Reference

VLA Criminal Professional support

The VLA Professional support lawyers have collected material to support lawyers who are planning to represent a person who is appealing to the Court of Appeal. These resources are available to VLA staff through our intranet.

Please contact Helen Askew if you would like to access this information from a Community Legal Centre.

See Practice Resources—Criminal law resources—Appeals in Court of Appeal(opens in a new window).

Supreme Court

The Supreme Court's practice direction has procedural information about the Court of Appeal process and bail applications.

See Supreme Court—SC CR 2 Bail applications and appeals (10 June 2020)(opens in a new window).

VLA Appeals & Strategy Team

VLA’s Appeals and Strategy team focuses on appeals in the Court of Appeal and the High Court.

See VLA help.

VLA Criminal Professional support28

The VLA Professional support lawyers have collected material to support lawyers who are planning to represent a person who is appealing to the Court of Appeal. These resources are available to VLA staff through our intranet.

Please contact Helen Askew if you would like to access this information from a Community Legal Centre.

See Practice Resources—Criminal law resources—Appeals in Court of Appeal(opens in a new window).

Acknowledgement

Thanks to VLA's Erin VanKrimpen, Senior Advocate in the Appeals and Strategy team for her assistance with this topic.

Updated