62. Appeals — Comprehensive Reference (Vic & Cth Criminal)

Scope and currency

Reference sheet · Criminal Procedure Act 2009 (Vic) Pt 6 · Judiciary Act 1903 (Cth) s 68(2) · Crimes Act 1914 (Cth) Pt VIIC · rebuilt 3 August 2026

Map of the pathways. Victoria runs several parallel appellate tracks depending on where the matter started and who is appealing: Children's Court → County Court/Trial Division → Court of Appeal (under the Children, Youth and Families Act 2005 (Vic) as amended, cross-referring to the Youth Justice Act 2024 (Vic)); Magistrates' Court → County Court (accused or DPP) → Court of Appeal, all under the Criminal Procedure Act 2009 (Vic) (CPA) Pt 6.1; and County Court/Trial Division of the Supreme Court → Court of Appeal → High Court under CPA Pt 6.3–6.4. Interlocutory appeals and case-stated procedures cut across the trial itself. A petition for mercy and, ultimately, the Royal Prerogative of Mercy sit outside the ordinary appellate hierarchy as a residual safety net. s 68(2) Judiciary Act 1903 (Cth) picks up the whole CPA appellate scheme (including case stated and DPP appeals) for Commonwealth offences prosecuted in Victoria.

1 · Commonwealth matters overlay

• s 68(2) Judiciary Act 1903 (Cth): applies the CPA 2009 appeal provisions to Commonwealth offences as if they were State offences — including case stated and DPP appeals.

• Reserved questions of law in Cth matters: permitted — R v Gee.

• Crown appeals in Cth matters: instituted by the Commonwealth DPP, not the State DPP.

2 · Appeals from the Children's Court

Statutory home: Children, Youth and Families Act 2005 (Vic) Pt 5.3 (as amended), read with the Youth Justice Act 2024 (Vic) for youth-justice concepts. Section numbers below are CYFA section numbers unless otherwise stated.

Children's Court → County Court (or Trial Division if constituted by the President/Chief Magistrate)

s	Rule
424	A person convicted (finding of guilt, with or without conviction) in a Children's Court summary proceeding may appeal against conviction and sentence, or sentence alone, to the County Court — or, if the Children's Court was constituted by the President or the Chief Magistrate, to the Trial Division of the Supreme Court.
425	Commenced by notice of appeal (NOA) filed within 28 days after sentence is imposed; a copy must be served on the respondent within 7 days of filing.
426	Conducted as a rehearing; the appellant is not bound by the plea entered in the Children's Court. The appellate court must warn as early as possible that a more severe sentence may be imposed, and may backdate a sentence to a date not earlier than the date the Children's Court sentence was set aside. On appeal against a non-accountable undertaking, accountable undertaking or Good Behaviour Bond, the appellate court may only dismiss the charge or make an order in the same terms — no other sentence may be imposed. The court may make a probation order, Youth Supervision Order or Youth Attendance Order even though the person is now 19 or over (but under 21).
427–429	DPP may appeal to the County Court (or Trial Division if the President/Chief Magistrate constituted the Children's Court) against a Children's Court summary sentence, if satisfied the appeal should be brought in the public interest. Commenced per s 428; conducted as a rehearing; the respondent is not bound by the Children's Court plea (s 429).
430	A NOA filed after the 28-day period is deemed an application for leave to appeal. Test: exceptional circumstances, and satisfaction that the respondent's case would not be materially prejudiced by the delay.
430A–430B	Notice of appeal operates as a stay of sentence pending appeal; if the appellant is in custody, must apply for bail — the Bail Act 1977 applies.
430C	Abandonment of appeal by filing notice.
430I	Appellate court may order a pre-sentence report; must order one if considering detention, and must order one if the appellant has an intellectual disability.

Further Children's Court appeal pathways

Pathway	Rule
Appeal to Supreme Court on a question of law (s 430P)	Any party to the proceeding may appeal to the Supreme Court on a question of law, within 28 days of the order complained of; must serve notice on the respondent within 7 days of filing. The Supreme Court may make any order it thinks appropriate, including remitting to the Children's Court.
Appeal against a decision of an appellate court, to the Court of Appeal (s 430R–430U)	A person sentenced to detention by an appellate court (County or Supreme) may appeal to the Court of Appeal against that sentence, if the Children's Court had not ordered detention and the CoA gives leave. Determining the appeal (s 430T): the CoA must allow the appeal if it finds error in the sentence and that a different sentence should be imposed — otherwise must dismiss. Orders on success (s 430U): CoA may impose a different sentence or remit to the appellate court.
Interlocutory appeals (s 533)	A court may reserve a question of law for determination by the Supreme Court as a case stated, on its own motion or on application of the parties (with the President's consent). The court cannot finally determine the matter until the Supreme Court's opinion has been given.
Miscellaneous (s 430ZB, s 430ZD)	Where the appellant is under 15, the appeal may be made on the child's behalf by a parent or the Secretary. Appeals are to be heard in open court.

3 · Appeal from the Magistrates' Court — accused (CPA Pt 6.1)

Commencement and determination — s 254–256

s	Rule
254	Right of appeal: any person convicted (finding of guilt, with or without conviction) in the Magistrates' Court in a criminal proceeding may appeal to the County Court against (a) conviction and sentence, or (b) sentence alone. County Court Criminal Division Practice Note s 37: conviction appeals listed for 1 day or more get a first listing 21 days from lodging — treated like a directions hearing. Quick v Creanor; Taylor v Wilkins — on appeal the court can reinstate charges the Magistrate struck out. Candolim Pty Ltd v Garnett — everything that occurred in the Magistrates' Court hearing is disregarded on the appeal hearing (de novo).
255	Commencement: NOA filed with a registrar of the Magistrates' Court, at any venue, within 28 days after sentence is imposed. Copy served on the respondent under s 392 within 7 days of filing. NOA must state whether the appeal is against conviction and sentence or sentence alone, in the prescribed CC form; must include a signed acknowledgment that the CC may impose a more severe sentence, and an undertaking to appear and to notify the CC registrar of any change of address. Before accepting the NOA, the MC registrar must give the person a NOA in prescribed form stating the CC may impose a more severe sentence, and (if the person filing is not the appellant) be satisfied the appellant has signed the required statement. NOA is transmitted to the CC.
256	Determination: conducted as a rehearing; appellant not bound by the MC hearing. On hearing: (a) CC must set aside the MC sentence; (b) impose any sentence the CC deems appropriate that the MC imposed or could have imposed; © may exercise any power the MC exercised or could have exercised (Quick v Creanor; Taylor v Wilkins). CC must warn the appellant as early as possible that a more severe sentence is possible — Firth v County Court of Victoria. CC may backdate the sentence to a date not earlier than the MC sentence set aside; the s 256(2) sentence is regarded as a CC sentence.
267	Appellant's failure to appear: may strike out the appeal or adjourn. If struck out, the original sentence is reinstated and a warrant to imprison may issue (if the original sentence was imprisonment).

4 · Appeal from the Magistrates' Court — DPP (CPA Pt 6.1)

DPP sentence appeal — s 257–259

s	Rule
257	DPP right of appeal against sentence: if satisfied it is in the public interest, the DPP may appeal to the CC against any sentence imposed in the MC in a criminal proceeding. The DPP cannot bring a further appeal against a sentence imposed by the CC on that appeal.
258	Commencement: NOA filed with an MC registrar at any venue within 28 days of sentence; served personally on the respondent under s 391 within 7 days; must state general grounds and be in prescribed CC form; DPP must provide a copy to the respondent's last legal representative (if reasonably identifiable); NOA transmitted to CC.
259	Determination: conducted as a rehearing; respondent not bound by the MC hearing. On hearing: (a) CC must set aside the MC sentence; (b) impose any sentence deemed appropriate that the MC imposed or could have imposed; © may exercise any MC power. CC must not take into account double jeopardy in resentencing, in order to impose a less severe sentence than otherwise appropriate. May backdate; the resulting sentence is regarded as a CC sentence.
268	Respondent's failure to appear on a DPP appeal: may adjourn; if satisfied the NOA was properly served, may proceed in the respondent's absence.

DPP appeal — failure to fulfil undertaking — s 260–262

s	Rule
260	Without limiting s 257, DPP may appeal a sentence imposed on a person who pleaded guilty to an indictable offence heard summarily by the MC, if (a) the sentence was less severe because of an undertaking to assist, and (b) the DPP considers the person has wholly or partly failed to fulfil it. May be brought at any time, regardless of whether the sentence has been served (s 260(2)).
261	Commencement: NOA signed personally by the DPP, filed with an MC registrar at any venue; served personally on the respondent under s 391 within 14 days of filing; prescribed CC form; copy to last legal representative; transmitted to CC.
262	Determination: not conducted as a rehearing. If the CC finds the undertaking wholly or partly unfulfilled: (a) may set aside the MC sentence; (b) impose any sentence deemed appropriate having regard to the failure. Double jeopardy must not be taken into account in resentencing to impose a less severe sentence.

5 · Common County Court appeal mechanics

Mechanism (s)	Rule
Appeal out of time (s 263)	NOA filed after the s 255(1)/s 258 period is deemed an application for leave, on the grounds stated. CC may grant leave if (a) the failure to file in time was due to exceptional circumstances, and (b) the respondent's case would not be materially prejudiced by the delay. If leave is refused, the CC must strike out the appeal; the MC sentence is reinstated and enforced as if no appeal was commenced (time is deemed not to have run during any stay); the registrar gives the respondent a copy of the striking-out order; the appellant's undertaking to proceed is discharged. If the appellant was sentenced to imprisonment/detention, a warrant may issue (and be recalled/cancelled).
Stay of sentence (s 264)	If not in custody: filing the NOA and signing the undertaking operates as a stay of the sentence (not the conviction). If in custody: the stay operates once the NOA is filed, the undertaking signed, and bail is granted under s 265. Subject to Road Safety Act 1986 (Vic) s 29 — lodging an appeal does not automatically stay a licence disqualification, but the court that made the order can stay it pending the appeal.
Bail pending appeal (s 265)	If in custody because of the sentence and wishing release pending appeal, must apply to the MC for bail and give reasonable notice to the respondent. The Bail Act 1977 applies — the MC must grant or refuse bail as if the appellant were an accused person in custody for that offence.
Abandonment of appeal (s 266)	Appeal may be abandoned by filing a Notice of Abandonment in CC prescribed form. If conviction and sentence were appealed and the appellant no longer wishes to appeal conviction, written notice must go to the CC and the respondent. An appellant sentenced to imprisonment but not in custody, who wishes to abandon, may surrender to the CC registrar and immediately file the notice (s 266(3)) — a warrant may then issue. On abandonment the CC must strike out the appeal; the MC sentence is reinstated as if there had been no appeal (time deemed not to run during any stay); the registrar provides a copy of the order; the undertaking is discharged. The CC may not set aside a s 266(4) striking-out order.
Further right of appeal (s 283, 5FA)	Where sentenced to imprisonment by the CC or Supreme Court, and in the proceeding before the Magistrate the Magistrate did not order imprisonment, may appeal from CC to Court of Appeal — CoA must give leave.
Appeal to Supreme Court on a question of law (s 272–273, 5SCL)	Appeal on a question of law from a final order of the Magistrates' Court; may be brought by the DPP; 28 days from determination to file NOA. s 273 — election: bringing this appeal means the appellant abandons, finally and conclusively, any right to appeal to the County Court in relation to that proceeding.

6 · County Court / Trial Division of the Supreme Court → Court of Appeal (CPA 2009 Pt 6.3)

The written case: Grounds of appeal and submissions must be articulated in a written case — procedural requirements in Practice Note SC CA 1 (reissued 19 December 2019). The written case should identify the conviction/sentence appealed, articulate the pleaded grounds, summarise the relevant facts, include written submissions on the grounds, and identify the authorities relied on. It must be filed together with the Notice of Application for leave to appeal (Form 6-2A); if leave is sought out of time, it must be accompanied by an extension-of-time application and supporting affidavit. The Act does not specify the basis for granting leave — in accordance with existing practice, leave hearings against conviction are hearings on the merits; the court may hear the appeal instanter, adjourn for a full bench, refuse leave, or dismiss the application.

7 · Appeal against conviction (s 275–277)

• s 275: commenced by filing a notice of application for leave to appeal within 28 days after the date of sentence (s 313 — extension of time).

• Accrual of the right: the right to seek leave accrues when the plea or jury verdict is accepted. Leave may be sought even where sentence does not involve recording a conviction — R v Celep.

• Timing of the application: ordinarily wait until after sentencing; seeking leave after plea/verdict but before sentence is appropriate only in exceptional circumstances — R v De Marchi.

The three s 276 grounds — the exhaustive bases for allowing a conviction appeal

Ground	Content
(a) Unreasonable verdict	"the verdict of the jury is unreasonable or cannot be supported having regard to the evidence."
(b) Error/irregularity → substantial miscarriage of justice	"as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice." Brawn v The King (Mathew Cucu Brawn v The King) [2025] HCA 20 — where an error or irregularity is shown, establishing a miscarriage of justice requires showing the error/irregularity was material, in the sense that it could realistically have affected the reasoning of the jury to its verdict — see the dedicated bank at §9 below.
© Any other reason	"for any other reason there has been a substantial miscarriage of justice."

These three grounds are exhaustive (CPA s 276) — in every other case the Court of Appeal must dismiss the appeal. Once an application for leave to appeal is heard and determined on the merits and passes into record, the Court cannot hear a second application for leave on the same conviction outside Pt 6.4 (§14 below); an offender who wishes to show a miscarriage of justice by fresh evidence must otherwise use the petition for mercy process — R v GAM (No 2).

The written case must identify specific trial-process errors (non-exhaustive)

• Jurisdiction: lack of jurisdiction to hear and determine the charge.

• Indictment: errors in the indictment, such as duplicity.

• Jury process: errors affecting the jury process — apprehension of bias, errors in empanelment.

• Procedural rulings: errors by the trial judge on procedural matters — orders re separate trials, improperly refusing an adjournment.

• Fairness/prosecution conduct: denial of procedural fairness; improper conduct by the prosecution.

• Evidentiary rulings: a wrong decision on the admission or exclusion of evidence.

• Incompetence of counsel: Kohari; see also R v Singh [2025] VSCA 95 (non-compliance with s 38 unfavourable-witness provisions, below).

• Charge to the jury: error in the judge's charge — e.g. on burden/standard of proof, evidence, a defence, or elements of the offence. Note the Jury Directions Act 2015 (Vic): counsel must identify matters in issue (s 11) and request particular directions be given or not given (s 12).

• Unsafe/unsatisfactory verdict: see Pell (HCA), quoting Libke — "whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt"; a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard.

• Inconsistent verdicts: verdicts on separate counts are inconsistent — see §8/§9 case banks.

Incompetence of counsel — the test

R v Singh [2025] VSCA 95 — non-compliance with s 38 unfavourable-witness provisions by either Crown or defence counsel led to disastrous evidence for the defence and a finding of incompetence of counsel against defence counsel. Parties are generally bound by their counsel's decisions, exercised within a wide discretion as to how the trial is run. The question is the fairness of the trial process, not the wisdom of counsel. An objective standard applies, without investigating the subjective reasons for the conduct. An appellant fails to establish incompetence if the course taken is explicable as a forensic advantage — unless that advantage is slight against the disadvantage that resulted. In Singh, incompetence was made out: the conduct was not explicable on a forensic-advantage basis (the opposite was apparent); trial counsel's failure to insist on s 38 compliance led to cross-examination eliciting impermissible, highly prejudicial character evidence and evidence suggesting the appellant had bribed a Crown witness to lie; and no s 21 JDA (incriminating conduct) direction was given or sought, though it ought to have been.

s 277 — orders on a successful conviction appeal

Situation → order

Appeal allowed → must set aside the conviction for offence A and either (a) order a new trial or enter a judgment of acquittal; or (b) if the appellant could have been found guilty of some other offence B and the court is satisfied the judge/jury would have been satisfied of the facts proving offence B, enter a judgment of conviction of offence B and impose a sentence no more severe than that imposed for offence A. If not satisfied of the facts for offence B, a new trial must be ordered for offence B. If satisfied that the correct verdict would have been not guilty because of mental impairment, enter a finding of NGMI (for either offence A or B as applicable). If the conviction is set aside, the CoA may vary a sentence imposed for a different offence at the time the appellant was sentenced for offence A, where that other sentence took offence A into account.

8 · Unreasonable verdict — the doctrine and the case-law bank

The pre-Pell foundational authorities

Case	Citation	Ratio
M v The Queen	(1994) 181 CLR 487	The authoritative test: the appellate court must ask whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The court undertakes its own independent assessment of the evidence, but must pay full regard to the jury's advantage in seeing and hearing the witnesses, and must not disregard that the jury is the body entrusted with the primary responsibility for determining guilt or innocence.
MFA v The Queen	(2002) 213 CLR 606	Where a verdict is said to be unreasonable because it is inconsistent with acquittals on other counts, the test is one of logic and reasonableness. A not-guilty verdict on some counts does not necessarily imply the jury disbelieved the complainant or lacked confidence in their evidence — it may reflect a cautious approach to the burden of proof, where the jury considers it more probable than not that a complainant is telling the truth but requires something more to be satisfied beyond reasonable doubt. Juries may apply an innate sense of fairness and justice, convicting of fewer counts than charged.
Libke v The Queen	(2007) 230 CLR 559	Applying the M v The Queen test, Hayne J formulated the inquiry as whether the appellate court must be satisfied that the jury "must, as distinct from might, have entertained a doubt" about the appellant's guilt. ⚠ Forensic caution (per the Criminal Proceedings Manual): this formulation risks over-deference to the jury's verdict and failing to accord with M v The Queen's strict requirement that the appellate court independently decide if a guilty verdict was open.
SKA v The Queen	(2011) 243 CLR 400	Strongly reaffirmed M v The Queen: an appellate court must make its own independent assessment of the whole of the evidence, but must continue to give full weight to the jury's advantage in observing and hearing witnesses, and to the jury's principal constitutional responsibility to determine guilt.

Pell and the post-Pell Victorian line

Case	Citation	Point
Pell v The Queen	(2020) 268 CLR 123; [2020] HCA 12	The analysis proceeds on the assumption that the complainant's evidence was assessed by the jury as credible and reliable. The appellate court then examines the record to see whether — by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence — the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt. The HCA found a significant possibility that an innocent person had been convicted and entered verdicts of acquittal.
The King v ZT	[2025] HCA 9	Highlights the importance of an appellate court actually viewing the evidence the jury viewed. NSW murder conviction; principal evidence was the accused's alleged admissions in intercepted phone calls and police interviews played to the jury. The NSW CCA majority did not listen to or watch the recordings, yet held the admissions insufficiently reliable and that the jury's advantage could not resolve their doubt. HCA: appeal allowed, remitted — an appellate court has no rational basis to conclude the jury had no advantage capable of resolving its doubt without itself seeing/hearing a sufficient part of the recordings to identify the extent, nature and scope of the jury's advantages. Nothing precludes an appellate court from reviewing recorded testimony or exhibits where there is a real forensic purpose.
Li Qing Wu v The King	[2025] VSCA 4	Conviction for trafficking a commercial quantity of heroin quashed — no evidence the jury could use, beyond reasonable doubt, to conclude the appellant believed there was a significant/real chance the heroin held was not less than 50g pure. No evidence she was told the purity, had means to ascertain it, was asked about it in her ROI, or admitted awareness at trial (she denied it). Rejecting her denial in cross-examination could not itself found a positive inference of knowledge; the manner of receipt (left on a doorstep) could not found an inference of purity knowledge; at highest, only a general link between drug value and quality was available — insufficient to found the specific purity-quantity belief.
Lithgow v The King	[2025] VSCA 64	Illustrates the importance of how the Crown case and the defence case are put. Multiple counts (rape, attempted rape, sexual assault) arising from one complainant, one occasion; complainant's account: "it all happened, I didn't consent, I often made that clear"; appellant's ROI: "some things happened but were consensual, other things did not happen." Jury convicted on the acts he admitted (as consensual), acquitted on the acts he denied. CoA: verdicts inconsistent, appeal allowed, convictions quashed — no aspect of the evidence rationally explained convicting on some counts but not others; to convict on the admitted acts required disbelieving the appellant and believing the complainant equally on the denied acts; no evidentiary basis distinguished attempt/reasonable-belief-in-consent findings between the acquitted and convicted counts.
Schliefert v The King	[2024] VSCA 197	Single-incident sexual-assault-in-a-tent case run on a "believe the complainant or don't" basis; jury acquitted on digital rape but convicted on sexual assault. CoA: verdicts consistent — conviction on sexual assault reflects the jury finding the complainant credible and reliable; acquittal on the rape charge says no more than the jury was not satisfied to the criminal standard that penetration occurred.
Ortisi v The King	[2025] VSCA 42	Multiple sexual-offence counts across four episodes on one day; jury acquitted on the first three episodes, convicted on two rape counts (and others) relating to the fourth. Leave to appeal refused — CCTV footage from the fourth (taxi) incident provided an independent evidentiary basis for the guilty findings notwithstanding the other acquittals.

9 · Substantial miscarriage of justice / the proviso — doctrine and case-law bank

The historical proviso and its Victorian abolition

Case	Citation	Point
Weiss v The Queen	(2005) 224 CLR 300	Considered the operation of the "proviso" to the former common-form criminal appeal provision (former s 568(1) Crimes Act 1958 (Vic)), which allowed an appellate court to dismiss an appeal despite identifying an error, if satisfied "no substantial miscarriage of justice has actually occurred." Ratio: the appellate court must not apply the proviso by predicting what the actual trial jury, or a hypothetical reasonable jury, would or might have done. It must undertake its own independent assessment of the evidence on the record — a "negative proposition": the proviso cannot save a conviction unless the appellate court is independently persuaded that the evidence properly admitted at trial proved guilt beyond reasonable doubt. The only exception is where the error amounted to a fundamental denial of procedural fairness or a serious breach of the presuppositions of the trial, in which case the proviso has no application at all.
Baini v The Queen	(2012) 246 CLR 469	The Victorian position: the High Court held the legislative foundation for the Weiss proviso approach had been removed in Victoria. The ratio of Baini establishes that a "substantial miscarriage of justice" encompasses two categories: (1) an error or irregularity that impacted the trial outcome (the result may have been different), and (2) a serious departure from proper trial processes, irrespective of impact on outcome. While the Crown no longer bears the onus of engaging a "proviso" as such, Baini held that the inevitability of conviction remains highly relevant: if the appellate court determines from the record that a guilty verdict was inevitable, it cannot be satisfied that the error resulted in a substantial miscarriage, unless the error was of a fundamental kind that deprived the appellant of a fair trial.

Brawn and the current materiality test

Content

Brawn v The King (cited in practitioner notes as Mathew Cucu Brawn v The King) [2025] HCA 20 — refining the materiality test. Facts: appellant convicted of maintaining a sexual relationship with a child under 17 (SA); the key issue was whether the appellant or another person (referred to by the complainant as her "uncle", a term she used for elder community males including the appellant's father) was the perpetrator. After sentence, the Crown told the defence that the appellant's father had been charged with sexual offences against a child, in a period overlapping the appellant's indictment period, and this had not been disclosed. Held: where an error or irregularity in a criminal trial is shown, establishing a miscarriage of justice requires showing the error/irregularity was material — in the sense that it could realistically have affected the reasoning of the jury to its verdict. Non-disclosure here denied the appellant the (enhanced) opportunity to point to his father as an alternative possible perpetrator. The Court of Appeal below was wrong to require proof that the defence would have been run differently but for the error. Three refinements the Court made to appellate practice: (1) a low bar — the materiality threshold is not onerous; "could" means "having the capacity to", and "realistically" simply excludes possibilities that are fanciful or improbable; it does not require an analysis of whether the accused might have been found not guilty but for the error. (2) focus on the actual trial — the inquiry looks to the possible effect of the error on the trial and jury reasoning that in fact occurred, not a hypothetical reasonable jury. (3) distinct from the Weiss proviso — materiality asks whether the error could realistically have affected the jury's reasoning; the (now largely inapplicable in Victoria) proviso instead asks the qualitatively different question whether the appellate court itself is independently satisfied that the properly admitted evidence proved guilt beyond reasonable doubt.

Commonwealth companion case and the Victorian statutory location of the materiality test

MDP v The King [2025] HCA 24 was decided as a Commonwealth companion case to Brawn (both address the common-form-appeal-provision materiality threshold), and its refinement of the materiality test is directly relevant to Victorian practice even though the two provisions are not identical. Under CPA 2009 (Vic) s 276(1), the Victorian Court of Appeal applies a highly similar test — asking whether the appellant has excluded the possibility that the error was "innocuous", and whether it may have affected the result of the trial. Practitioners drafting appeal grounds should articulate precisely how an impugned error had the realistic capacity to affect the jury's pathway to guilt in the** specific trial that occurred, before engaging with any Crown argument that conviction was inevitable regardless of the error.

Substantial miscarriage of justice — further Victorian illustrations

Case	Citation	Point
Matthams (a pseudonym) v The King	[2025] VSCA 44	Alleged sexual offending against two children; the informant gave evidence there was no DNA evidence linking the appellant to the offending; the prosecutor made closing-address remarks about the potential for removal of DNA evidence, with no expert evidence led at trial about removal of DNA. Held: the Crown's remarks went beyond the evidence and invited the jury to speculate; not cured by the prosecutor's subsequent remarks or the trial judge's directions — substantial miscarriage of justice, retrial ordered.
Mali v The King	[2025] VSCA 91	Attempt to possess a border-controlled drug; the appellant obtained packages containing substituted material in place of cocaine. Crown case at trial: the appellant knew, believed, or was reckless that the packages contained cocaine at the time he first obtained/took possession. A jury question asked whether there was a time element restricted to the initial act of receiving the boxes. Over defence objection, the trial judge directed the jury it could convict if satisfied the appellant "knew or believed or was reckless" at some stage whilst the drugs were in his possession. Defence had run the trial on the footing that the Crown case was confined to the point of initial possession, and made forensic decisions accordingly. CoA: the direction impermissibly enlarged the Crown case; defence counsel had no opportunity to address the jury on that additional basis for conviction — substantial miscarriage of justice, conviction set aside, new trial ordered.

10 · Change of plea and appeals

• Kumar v R: an application to withdraw a guilty plea will only be entertained where it is shown not to represent a true admission of guilt, freely made without inducement or trickery, in circumstances where the accused intended to accept responsibility for something he or she believed themselves guilty of.

• Guariglia v The Queen (HCA): ordinarily a change of plea will not be entertained; the court will entertain the appeal if it appears the applicant did not appreciate the nature of the charge, did not intend to admit guilt, could not in law have been convicted on the admitted facts, or otherwise there has been a miscarriage of justice.

• Parker v DPP (Cth) [2025] VSCA 316: the appellant had pleaded guilty to entering an agreement intending to prevent recovery of employee entitlements — a breach of s 596AB(1) Corporations Act 2001 (Cth), as in force at 10 July 2014. Three co-accused each believed the employer company might be able to apply under the Fair Entitlements Guarantee Act 2012 (Cth) for advances to pay employee entitlements. One co-accused pleaded guilty; the other two challenged on the basis they could not be guilty if they held that expectation. The CoA agreed with the two challengers on a referred point of law — prosecution against them was discontinued, and an acquittal was ordered for the accused who had pleaded guilty.

11 · Appeal against sentence — the offender (s 278–282, 5SENT)

• Who may appeal: the Crown and the accused may appeal, or seek leave to appeal, respectively, against sentences imposed in the County Court or the Trial Division of the Supreme Court in its original jurisdiction.

• Function of sentence appeals: maintaining consistency of penalties and confidence in the administration of justice, and correcting idiosyncratic views — Dinsdale v R; Everett v R (both HCA). See §12 for full case law.

House v R — the constraining principle

Sentence appeals (and interlocutory appeals reviewing discretionary decisions, §13) are constrained by the principles of appellate review of discretionary decisions in House v The King [1936] HCA 40: it is not enough that the appellate judges would, in the primary judge's position, have taken a different course. Error must be shown: the judge acted on a wrong principle; allowed extraneous or irrelevant matters to affect the decision; mistook the facts; or did not take into account some material consideration — the determination should then be reviewed, and the appellate court may substitute its own discretion if it has the materials to do so. Alternatively, it may not appear how the primary judge reached the result, but if the result is on its face unreasonable or plainly unjust, the appellate court may infer a failure to properly exercise the discretion — even where the nature of the error cannot be identified, the exercise of discretion is reviewed on the footing that a substantial wrong has occurred (see also Lowndes v R; Dinsdale v R). These principles apply to both Crown and offender sentence appeals — Dinsdale v R.

s 278–282 mechanics

s	Rule
278	Right of appeal against sentence if the Court of Appeal gives leave.
279	Commenced by filing a notice of application for leave within 28 days after the date of sentence (s 313 — extension of time).
280	CoA may refuse leave on any ground where there is no reasonable prospect the CoA would impose a less severe sentence, or no reasonable prospect the total effective sentence (TES) would be reduced even if error is shown. Refusal is available even where a reasonably arguable ground exists. But where refused only on the no-TES-reduction basis, the court may still amend the sentence by substituting a less severe one, to correct it.
281	Determination: CoA must allow the appeal if the appellant shows an error in the sentence first imposed and that a different sentence should be imposed — sentencing judge acted on a wrong principle, mistook the facts, took into account irrelevant matters, or failed to take into account relevant matters (House v R). Otherwise the appeal must be dismissed. If a more severe sentence is being considered, the appellant must be warned.
282	On success: the court must set aside the sentence and either impose the sentence (more or less severe) it considers appropriate, or remit to the originating court — with directions as to the scope of any further hearing, including whether the same judge should hear it.

12 · Manifestly excessive / manifestly inadequate

• Nature of the complaint: the last House v R proposition is commonly expressed as "manifestly excessive" or "manifestly inadequate" — this is a conclusion, not a line of reasoning; there is often little room for argument or elaboration, as a sentence either is or is not unreasonable or plainly unjust.

• The threshold: the appellate court reviews the circumstances and determines whether the sentence was outside the permissible range available — Dinsdale; R v King; R v ALP; R v Hilton. The appellant must show it was not reasonably open to the sentencing court to impose the sentence it did — Kumar v R; Clarkson v R; Hards v R.

• Weight complaints — historical development: complaints of inadequate/excessive weight to sentencing factors could historically be treated as discrete grounds or as particulars of manifest excess/inadequacy (R v Stratton (2008) 20 VR 539; [2008] VSCA 130; R v RGG [2008] VSCA 94; R v Bernath [1997] 1 VR 271). Courts moved to treating weight complaints only as particulars of manifest excess/inadequacy (DPP v Terrick; Pesa v R; Scerri v R), and more recently have disapproved reliance on such particulars as of "little or no utility" — because the ground does not require determining whether factors were improperly weighed, but whether, in the appellate court's judgment, the sentence is manifestly too long or too short (DPP v Weybury; DPP v Cramp). If manifest excess/inadequacy is found, it might be inferred too much/too little weight was given to a factor, but it will rarely be possible or necessary to reach a concluded view on that — Lord v The Queen.

• Parity complaints: a complaint about the parity principle is usually assessed the same way as manifest inadequacy/excess — whether it was reasonably open for the trial judge to differentiate (or not) as the judge did — Hilder v The Queen; Ryan v The Queen.

• Individual sentences vs TES: a party can appeal individual sentences, cumulation orders, and the non-parole period, but not the total effective sentence alone. The court may allow the appeal and impose different sentences on individual counts while retaining the same non-parole period — R v Boucher; R v Bolton & Barker; R v Lomax.

• Reopening across counts: where the court considers an appeal against multiple sentences on an indictment, the sentencing discretion for the other offences may be reopened if error is shown on any one — sentencing can be an integrated process, and a defect in one sentence may require adjustment of others.

• Law as it stood, or as it now stands? when resentencing after a successful appeal, the Court may need to decide whether changes in the underlying sentencing law are relevant, or whether it applies the law as it stood at first sentence — considered in Younger v R re amendments to Sentencing Act 1991 (Vic) s 44 (imprisonment combined with a CCO), but no concluded view was reached.

13 · DPP / Crown rights of appeal against sentence (5DRA, s 287–289)

The historical rationale and the current Victorian statutory position

Case	Citation	Point
Griffiths v The Queen	(1977) 137 CLR 293	At common law, Crown appeals cut across time-honoured concepts of criminal administration and must be treated as an "extraordinary remedy". Barwick CJ's ratio: a Crown appeal should be a "rarity", brought only to establish some matter of principle, and to afford the appellate court an opportunity to lay down principles for the governance and guidance of sentencing courts.
Everett v The Queen	(1994) 181 CLR 295	Endorsed the strict Griffiths approach, establishing that the rarity of Crown appeals is directly related to the principle of double jeopardy — the unfairness of putting an offender's freedom in jeopardy a second time after already having been sentenced by the primary tribunal. The requirement that the Crown establish a "matter of principle" encompasses showing what is necessary to avoid "manifest inadequacy or inconsistency in sentencing standards."
Dinsdale v The Queen	(2000) 202 CLR 321	Where the Crown appeals on the ground of manifest inadequacy, the ratio is that manifest inadequacy is a conclusion that a sentence is unreasonable or plainly unjust — it does not depend on attributing an identified specific error to the sentencing judge's reasoning. An appellate court may intervene and resentence where the sentence imposed is "manifestly wrong" or "manifestly inadequate", even where the nature of the specific discretionary error cannot be discovered.
DPP v Karazisis	(2010) 31 VR 634	Addresses the modern Victorian statutory framework under the CPA 2009. Held that s 289(2) CPA expressly eliminated "double jeopardy" as a consideration for the Court of Appeal in deciding whether to allow a Crown appeal, and in resentencing the offender. Consequently, the common law principles from Griffiths and Everett — that Crown appeals should be "rare and exceptional", insofar as those constraints derived solely from the double-jeopardy doctrine — no longer apply in Victoria. However, the Court retains a residual discretion to dismiss a Crown appeal even where sentencing error is shown, based on factors other than double jeopardy (such as delay, parity, or the offender's rehabilitation since the original sentence).

The remaining Karazisis / Zhuang / O'Neill principles (as given in the source notes — verify full citations before relying)

• DPP v Karazisis and DPP v Zhuang: state the principles applying in Crown appeals — there must be an error of the House v R kind, and the error must raise a matter of principle needing to be addressed for the governance and guidance of sentencing courts, or to establish/maintain proper sentencing standards.

• DPP v O'Neill: the Crown may bring an appeal without needing to establish manifest inadequacy if the above is satisfied — but it must be shown the error had a significant material effect on the sentence, otherwise the residual discretion not to interfere is enlivened.

s 287–289 mechanics

s	Rule
287	Right of appeal by DPP — may appeal to the CoA against a sentence imposed if satisfied there is an error in the sentence and a different sentence should be imposed, and satisfied the appeal should be brought in the public interest.
288	Commenced by filing a notice of application for leave within 28 days of the date of sentence (s 313 — extension of time); must be signed personally by the DPP.
289	Determination of the Crown appeal — CoA must allow the appeal if the DPP satisfies the court there is an error in the sentence first imposed, that a different sentence should be imposed, and what that alternative sentence is — DPP v Clunie [2016] VSCA 216. In any other case, the appeal must be dismissed.

14 · Fresh evidence (5FE)

The general admission test: Additional evidence may be led on appeal if: (a) the evidence is admissible; (b) it is "fresh evidence"; © it appears credible or plausible; and (d) it has sufficient relevance and cogency — R v Nguyen & Tran [1998] 4 VR 394; R v AHK [2001] VSCA 220; R v Kucma (2005) 11 VR 472; [2005] VSCA 58.

Fresh evidence — appeal against conviction

• Flexibility of the four requirements: at least for conviction appeals, the four requirements are not rigid and absolute — the fundamental question is whether there has been a substantial miscarriage of justice — Weng v R.

• "Fresh": evidence is only fresh if it was not available to a party in the exercise of reasonable diligence at the time of trial — R v Kucma (VCA); Mickelberg v R (HCA).

• Practical availability: the court may consider whether evidence was practically available; where a witness was unwilling at trial to give evidence, that witness's evidence — even if known to the accused — will not necessarily be treated as "available" — Weng v R.

• Reasonable diligence in practice: the appellate court considers what steps the defence took to secure the evidence, including whether reasonable diligence required subpoenaing the witness and seeking to question them, at least at a pre-trial hearing — Martin v The Queen [No 2].

• Would the fresh evidence have changed the result? the CoA will allow the appeal if fresh evidence would have affected the result at the original trial — the court does not speculate on whether the accused would be convicted at a new trial — R v Kucma.

• Recanting witnesses: where fresh evidence consists of a key witness recanting trial evidence, the ordinary tests must be qualified — the court must act with extreme caution, since a change of position may not reveal that the trial evidence was unreliable. The court will carefully assess the witness's asserted reasons for changing evidence and the significance of that evidence at trial; it may be necessary to call and examine the witness at the appeal hearing — Fram v R.

Fresh evidence — appeal against sentence (a distinct set of principles)

• Threshold: the new evidence must relate to events occurring since sentence was imposed; it must demonstrate the true significance of facts already in existence at the time of sentence; it will not be admitted if it relates only to post-sentence events showing the sentence has turned out to be excessive.

• No need to have raised it at plea: the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs during the plea.

• No separate error inquiry: on admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error or was manifestly excessive — the question is whether, on all the material now before the court, a different sentence should be substituted to avoid a miscarriage of justice.

• Effect on the sentencing discretion: the consistent approach is to treat the sentencing discretion as reopened once the fresh evidence is concluded to throw significant new light on the pre-existing facts — the court determines the appropriate sentence on all material then before it — R v Duy Duc Nguyen.

• Rehabilitation is different: these principles do not apply to evidence of the accused's progress toward rehabilitation between sentence and appeal — such evidence is admitted as a matter of course once the appellate court decides to reopen the sentencing discretion — Betts v R; Kentwell v R.

• Fresh evidence can show manifest excess even without error at the time: fresh evidence on appeal may demonstrate the sentence was manifestly excessive, even though it was appropriate on the material available at sentence — R v Rostom.

• Verdins raised late: Verdins principles not argued before the sentencing court will not lightly be entertained on appeal — R v Romero.

• Illustrative outcomes: Al Wahame — fresh evidence of intellectual disability admitted, but the same sentence imposed because of community protection. Cavanagh — resentenced on diagnosis of terminal cancer after sentence. Fedele — evidence of early-onset dementia admitted and resentenced.

15 · Where a higher court imposed gaol and the Magistrates' Court did not (5HCJ, s 283–286)

s	Rule
283	A person sentenced to imprisonment by the County or Supreme Court on appeal from the Magistrates' Court may appeal to the CoA against that sentence, if the MC sentence was not imprisonment and the CoA gives leave.
284	Commenced by filing a notice of application for leave within 28 days of the date of sentence (s 313 — extension of time).
284A	CoA may refuse leave on any ground where there is no reasonable prospect of a less severe sentence, or no reasonable prospect the TES would be reduced even if error is shown — an application may be refused despite a reasonably arguable ground; but the court may still amend the sentence by substituting a less severe one to correct it.
285	Determination: CoA must allow the appeal if the appellant shows error in the sentence and that a different sentence should be imposed; otherwise dismissed; if a more severe sentence is being considered, the appellant must be warned.
286	On success: the court must set aside the sentence and impose the sentence it considers appropriate (more or less severe), or remit to the originating court, with directions on the scope of any further hearing including whether the same judge should hear it.
290	Orders on a successful appeal generally — must set aside the sentence imposed and impose the sentence considered appropriate.
291	Right of appeal — failure to fulfil an undertaking (see ss 292–294 for the process, mirroring the s 260–262 mechanism).

16 · Interlocutory appeals (5INT, s 295–300)

What counts — inclusions and exclusions

• Included (broadly defined "interlocutory decision"): rulings on the admissibility/inadmissibility of evidence; rulings pre-trial or during the course of trial; a decision on whether to grant a permanent stay of proceedings; a judge's decision on recusal for apprehended bias — GP v R.

• Excluded: a decision to uphold a no-case-to-answer submission — DPP v Singh; an order or refusal to order that VLA provide representation — Cook v The Queen; Victoria Legal Aid v Beljajev.

The certification gateway — s 295

Content

A party may only seek leave to appeal an interlocutory decision if the judge who made it certifies: (a) if the decision concerns admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case (also relevant if ruled admissible and it impacts the prosecution case) (s 295(3)(a)); or (b) if the decision does not concern admissibility, that it is otherwise sufficiently important to the trial to justify determination on an interlocutory appeal (s 295(3)(b)); and © if made after the trial commenced, either that the issue could not reasonably have been identified before trial, or the party was not at fault in failing to identify it (s 295(3)©). The judge must also consider whether the interlocutory decision is attended by sufficient doubt to warrant an appeal — a judge should refuse to certify where the appeal would be hopeless or there is no sufficient doubt — M A v R; Wells v R (No 2); R v Bufton (Ruling No 2). It is normally not appropriate for a judge to certify simply because the parties agree — the judge must independently assess whether the criteria are met — MA v R. The Court of Appeal will refuse leave if it determines certification was wrongly granted — CGL v DPP (No 2).

The stringency of "eliminate or substantially weaken"

• Not enough that it "significantly" weakens the case: an interlocutory appeal is justified only for "major" or "very important" evidence — ZL v R; DPP v Wise.

• "Substantially weakened" — the three formulations: if exclusion would cause the prosecution to seriously reconsider whether the case should proceed — CGL v DPP (No 2); or if the case "depends entirely" on the challenged evidence — THD v R; or if exclusion "could realistically be expected to affect the outcome" — DPP v Paulino; DPP v Weaver.

• Certifying judge's task on evidentiary rulings: the trial judge must certify that exclusion would eliminate or substantially weaken the prosecution case before an application can be made — Paulino (per Weinberg JA). If the judge does not certify, a review of the refusal can be sought; both a review of a certification refusal, and a review of the ruling itself, are only allowed where a specific error is established — i.e. the ruling was not reasonably open in the circumstances — Peterson (a pseudonym), citing Paulino. Interlocutory appeals are strictly confined to questions of "real significance."

Mechanics — s 295–300

s	Rule
295	Right of appeal against an interlocutory decision in a proceeding in the County Court or Trial Division; CoA must give leave; the certification conditions above must be met. Procedure: Practice Note SC CA 2 (from 30 January 2017).
296	Review of a refusal to certify — the party who requested certification may apply to the CoA for review. Timing: if trial not commenced, within 10 days of the refusal; if the trial commences within those 10 days, within 2 days of the day the trial commences; if the trial has already commenced, within 2 days of the refusal (s 313 — extension of time). If the CoA is satisfied on review, it may give leave to appeal the interlocutory decision.
297	Leave to appeal may be given if the court is satisfied it is in the interests of justice, having regard to: (a) the extent of any disruption or delay to the trial process; (b) whether the appeal's determination may (i) render the trial unnecessary, (ii) substantially reduce the trial's length, (iii) resolve a necessary issue of law, evidence or procedure, or (iv) reduce the likelihood of a successful conviction appeal if convicted at trial; and any other relevant matter. The CoA must not give leave after the trial has commenced unless the reasons clearly outweigh any trial disruption. A refusal of leave does not preclude any other appeal on the same issue.
298	Commencement — same timing structure as s 296 (10 days / 2 days variants); see Practice Note SC CA 2 for procedure.
299	The trial judge must adjourn the trial without discharging the jury, if reasonably practicable, until the interlocutory appeal is determined (once leave has been given after the trial has commenced).
300	Determination is on the evidence given in the proceeding, unless the CoA gives leave to adduce additional evidence. The CoA may affirm or set aside the interlocutory decision, and if set aside may make any other decision it considers ought to have been made, or remit to the court that made the decision.

The standard of review on an interlocutory appeal — resolved by Moore v The King [2024] HCA 30

The standard governing the interlocutory appeal itself was, until recently, House v The King [1936] HCA 40 — i.e. that the decision under appeal must have been "unreasonable", "plainly unjust", or affected by identifiable error. This was challenged in Moore (a pseudonym) v The King [2023] VSCA 236 — an interlocutory appeal against a trial judge's decision to admit hearsay evidence from a deceased complainant (under s 65, and then under the s 137 probative-vs-prejudicial test), on the argument that the correctness standard in Warren v Coombes (1979) 142 CLR 531 should apply instead, because a s 137 admission decision has only one legally correct answer (see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541) and is not a "discretionary" decision of the House v R kind. The High Court has since decided this appeal: Moore v The King [2024] HCA 30. Held: the standard of review does not differ categorically between interlocutory and post-conviction appeals — it depends entirely on the nature of the decision under appeal. Where the decision is discretionary, the restrictive House v The King standard applies (the appellate court will not intervene merely because it would have reached a different conclusion — it must find the primary judge acted on a wrong principle, took into account irrelevant matters, mistook the facts, failed to take into account a material consideration, or reached an unreasonable or plainly unjust result). Where the decision is one with a single legally correct outcome (even where reaching that answer involves a value judgment), the correctness standard from Warren v Coombes applies — the appellate court substitutes its own view of the legally correct result, giving weight to any advantages the trial judge enjoyed in assessing the facts and issues. Moore also holds that whether the trial judge's decision reveals an error of principle may be relevant to whether leave to appeal should be granted in the first place, but once leave is granted, the Court of Appeal is strictly bound to apply the standard of review dictated by the nature of the decision. The exact date of the Moore v The King [2024] HCA 30 judgment was not available in the sources reviewed — verify before citing the date.

Charter of Human Rights and Responsibilities Act 2006 (Vic) overlay

• s 25(4): establishes the right to appeal as a substantive human right.

• Historical caution: when interlocutory appeals were first introduced, the Court of Appeal warned that Charter issues were generally not suitable for interlocutory appeals, as they were thought to require extensive research and were likely to cause increased trial disruption — Wells v R (No 2); R v Chaouk (2013).

• Current position: many aspects of the Charter are now well understood, and the Court of Appeal is more willing to consider Charter arguments on an interlocutory appeal — Baker v DPP.

Miscellaneous interlocutory/procedural provisions

• s 310: bail pending appeal — s 323. Notice to the Crown at least 24 hours before the application is filed (Practice Note, at [13]).

• s 312: execution of an order for forfeiture or destruction of property is not to occur during the appeal period unless permitted by law.

• s 313: extension of time for filing/serving a notice of appeal or leave application; if a registrar refuses, the applicant is entitled to have the CoA determine it. Principles: R v John Edward Darby, unreported, Supreme Court of Vic, 2 May 1975, recently cited in Evans v The Queen — finality and compliance with time limits are required in the ordinary case; extension is discretionary, onus on the applicant to show special and substantial reasons; the longer the delay, the more exceptional the circumstances must be; extension will be refused unless the proposed appeal has such merit it would probably succeed; the court considers whether the applicant was dilatory or indicated no appeal would be initiated — even solicitor fault requires the applicant to give a satisfactory account and discharge the onus.

• s 314: an appeal to the CoA may be abandoned.

• s 315: powers exercisable by the Court of Appeal constituted by a single Judge of Appeal — grant leave to appeal, review a refusal to certify, extend time to file an appeal or leave application, grant appellant bail, order stays of sentence, call on a court/respondent to show cause why a question of law should not be reserved for CoA determination. If refused by a single judge, the applicant is entitled to have the application determined by the CoA constituted by 2+ judges.

• s 318–319: order for examination of a compellable witness; evidence of a competent but not compellable witness.

• s 321: on an appeal, the CoA must not increase a sentence by reason of evidence not given at trial or sentencing, unless the CoA considers the originating court was misled at the sentencing hearing as to a material fact and an increase is necessary in the interests of justice.

• s 323: the CoA can remand the appellant in custody or grant bail pending a new trial.

17 · Questions of law / case stated (5QL, s 302–310)

s	Rule
302	If a question of law arises before or during trial, the court may reserve it for determination by the CoA if satisfied it is in the interests of justice to do so (the section specifies matters the court must have regard to).
303	The judge must adjourn the trial without discharging the jury, if reasonably practicable, until the question of law has been determined (once leave to appeal has been given, if the trial has already commenced).
304	If the Supreme or County Court refuses an application under s 302 to reserve a question of law, the applicant may apply to the CoA for an order calling on the refusing court and the respondent to show cause why the question should not be reserved. The CoA may order the question be reserved, or refuse the application (with or without costs).
305–306	Where a court reserves a question of law, it must state a case, setting out the question and the circumstances in which it arose.
308	The DPP may refer a point of law to the Court of Appeal after a person has been acquitted; the acquitted person is entitled to reasonable costs.

18 · Second or subsequent appeal to the Court of Appeal (5SCOA, Pt 6.4)

Introduced by the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic), inserting Part 6.4 — Second or Subsequent Appeal to Court of Appeal.

s	Rule
326A	A person convicted of an indictable offence by an originating court, who (a) has exhausted their right to appeal against conviction under Div 1, Pt 6.3, or (b) has previously appealed under this Part but leave was not granted or the appeal was dismissed (in whole or part), may appeal to the CoA against the conviction if the CoA gives leave.
326B	Commenced by filing a notice of application for leave in accordance with the Rules of Court.
326C	Leave test: the CoA may grant leave if satisfied there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. Leave against a related summary offence conviction may be granted only if leave is also granted for the indictable offence. "Fresh" means (i) not adduced at trial, and (ii) could not, even with reasonable diligence, have been adduced at trial. "Compelling" means (i) reliable, (ii) substantial, and (iii) either (A) highly probative in the context of the issues in dispute at trial, or (B) would have eliminated or substantially weakened the prosecution case if presented at trial. Evidence that would be admissible on the second/subsequent appeal is not precluded from being fresh or compelling merely because it would not have been admissible at the earlier trial.
326D	Determination: the CoA must allow the appeal against conviction if satisfied there has been a substantial miscarriage of justice. In any other case the appeal must be dismissed.
326E–326S	Orders on success — order a new trial, or enter a judgment of acquittal, or (if satisfied the appellant could have been found guilty of another offence) enter a conviction for that offence or order a new trial for it, or (if satisfied on the facts the jury would have found NGMI) enter that finding; the sentence may also be substituted. The CoA can stay a sentence under this Part if in the interests of justice; the applicant can apply for bail. ss 326G–326S contain further procedural provisions.

Recent cases under the new statutory provision: Roberts v The Queen [2020] VSCA 58 (application for leave) and [2020] VSCA 277 (appeal allowed, retrial ordered).

19 · Court of Appeal to the High Court (5HCA)

• Two-step process: (1) apply for and be granted special leave; (2) if granted, the appeal proper.

• Constitutional source: s 73 of the Constitution confers power on the High Court to hear and determine appeals from all judgments, decrees, orders and sentences of federal courts, courts exercising federal jurisdiction, and the Supreme Court of any State.

• Special leave criteria — s 35A Judiciary Act 1903 (Cth) (non-exhaustive): the High Court may have regard to any relevant matters but must have regard to whether the proceedings involve a question of law that (i) is of public importance, whether because of its general application or otherwise, or (ii) requires resolution by the High Court of differing judicial opinion between or within courts; and whether the interests of the administration of justice, generally or in the particular case, require the High Court's consideration.

• No direct County Court appeal: there is no direct appeal available from the County Court to the High Court.

• Time and evidence: an appeal must be lodged within 28 days of the appellate court's decision (High Court Rules Pts 41–42). The High Court will not receive fresh or new evidence — it decides the appeal only on the evidence and the law as at the time of the proceedings below; there is no legislative provision to receive further evidence.

• Typical remittal practice: sentence appeals are usually remitted back to the Court of Appeal, as are conviction appeals where a specific error by the appellate court is established. Decisions on the validity of laws, or where the verdict is unsafe, are more likely to result in a direct acquittal.

Recent Victorian-relevant examples of HCA intervention

• IMM v R [2016] HCA 14 and GW v R [2016] HCA: different approaches taken by State appellate courts on evidence law under the uniform evidence legislation.

• RP v R [2016] HCA 5: the fundamental common law presumption of doli incapax in relation to child offenders.

• R v Kilic [2016] HCA 48: the HCA found the VSCA erred in finding the offender's sentence was manifestly excessive.

• Pell v The Queen [2020] HCA 12: the Court found the jury, acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant's guilt — verdicts of acquittal entered.

20 · Petition for mercy (5PM)

The Royal Prerogative of Mercy: The ancient power of the monarch to show mercy to an offender and redress miscarriages of justice — historically significant in capital cases, before systems of criminal appeal developed. A personal executive power vested in the sovereign, exercisable in Australia by the Governor-General and by State Governors. The Governor-General's pardon power extends only to Commonwealth or Territory offences — not State offences, nor overseas convictions. Exercised on petition, usually from the convicted person or someone acting for them, and by constitutional convention on advice from the relevant government minister.

What the Governor-General may grant, and the practical/legal context

• Forms of relief: a free and absolute pardon; a conditional pardon; a remission of penalty; or an order for a (non-judicial) inquiry into a conviction.

• Effect of a free and absolute pardon (Cth): the Crimes Act 1914 (Cth) provides that a person granted a free and absolute pardon because they were "wrongly convicted" shall be taken "never to have been convicted of the offence" (s 85ZR) — contrast the UK position, where a royal pardon removes only the penalty, not the conviction itself.

• Rarity: full and free pardons are rarely granted; ministers apply a high threshold, historically recommending a pardon only where satisfied the convicted person was both morally and technically innocent (see the discussion of pardons in R v Secretary of State for the Home Department ex p. Bentley and an Australian Senate Committee hearing). No comprehensive public record exists of Commonwealth pardons, though since 1990 the Governor-General has granted four free and absolute pardons (corporations, electoral and taxation law convictions) and a number of full/partial fine remissions, most commonly on financial-hardship grounds.

• Non-justiciability: the Royal Prerogative of Mercy is highly discretionary, existing at common law and uncodified; "mercy is not the subject of legal rights — it begins where legal rights end." Australian courts have found the Crown's discretion is not amenable to judicial review (Eastman v Attorney-General (ACT) (2007) contains a comprehensive summary).

• The statutory referral alternative: Australian States/Territories have statutory schemes operating alongside the prerogative, enabling the relevant minister to remit a matter back to a court of criminal appeal — the Commonwealth has no parallel mechanism, but s 68 Judiciary Act 1903 (Cth) applies State/Territory procedural laws to federal offenders, so the Attorney-General can consider referring a federal offender's case to the relevant State/Territory appellate court. A decision not to refer is amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) — Martens v Commonwealth of Australia (2009) (Federal Court set aside a ministerial refusal for failing to take a relevant consideration into account; the conviction was subsequently quashed).

• Early release under exceptional circumstances: the Crimes Act 1914 (Cth) s 19AP independently empowers the Attorney-General to grant a licence for early release from a federal sentence where satisfied exceptional circumstances exist (undefined, but generally including law-enforcement assistance or illness untreatable in prison) — used by Attorney-General Roxon to release 15 Indonesian minors convicted of people-smuggling offences.

Victorian procedure — CPA 2009 s 327 (source: the Victorian Criminal Charge Book)

Content

s 327(1): if a person convicted on indictment, or found unfit to stand trial, or found NGMI, petitions for the exercise of mercy in relation to the conviction/finding or the sentence imposed, the Attorney-General (a) may refer the whole case to the Court of Appeal, or (b) may refer any point arising in the case to the judges of the Trial Division of the Supreme Court for their opinion. s 327(2): if the whole case is referred, the CoA must hear and determine it as if it were an appeal by the person. s 327(3): if a question is referred to the Trial Division, those judges (or any 3) must consider it and provide their opinion to the Attorney-General. s 327(4): nothing in the Chapter affects the prerogative of mercy. Procedure on a full referral: the CoA hears and determines the matter as if it were an appeal following a grant of leave, applying the same principles and procedures as an ordinary Pt 6.3 appeal, except that the court is not bound by any previous decision dismissing the appeal or refusing leave — Supreme Court (Criminal Procedure) Rules 2008 r 2.26; Re Ratten [1974] VR 201; Re Matthews and Ford [1973] VR 199; Re MJR (2000) 1 VR 119; [2000] VSCA 44. The court considers all questions of fact and law and determines whether the petitioner can establish a s 276(1) ground; in doing so it may receive fresh evidence without requiring leave — Mickelberg v R (1989) 167 CLR 259; [1989] HCA 35; Mallard v R (2005) 224 CLR 125; [2005] HCA 68; R v Chard [1984] AC 279. The petitioner is not limited to the grounds in the petition, and may raise additional grounds without a further reference or CoA leave — Re MJR. Although not bound by an earlier decision, the court will only re-adjudicate a previously considered ground where there is material making reconsideration necessary or desirable — Re MJR; Re Ross (2007) 19 VR 272; [2007] VSC 572; Re Matthews and Ford; Mickelberg (per Toohey and Gaudron JJ). ⚠ It is currently unclear whether the court must apply the common law and fairness standards as they existed at the time of the original decision, or at the time of reviewing the petition — Re Ross; cf R v Bentley [1998] EWCA Crim 2516. A petition is available for conviction or sentence, and may be brought even by a person who pleaded guilty — Re MJR.

Interaction with Part 6.4: As part of the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic), Pt 6.4 — Second or Subsequent Appeal to Court of Appeal (§18) — was introduced, creating a right to a second/subsequent appeal against conviction not requiring a referral from the Attorney-General. s 327 continues to operate alongside it.

Illustrative recent petitions

• Folbigg v R [2023] NSWCCA 325: convicted of the manslaughter of one child and the murder of three others, with diary entries featuring heavily at trial. Years later, scientific evidence emerged that the children may have died of a neurogenetic disorder rather than suffocation; convictions quashed. Held (at [26]): the substantial and extensive body of new scientific evidence substantially diminished the probative force of what had been relied on as powerful coincidence and tendency evidence at trial. Held (at [27]): viewed in isolation, certain diary entries had a powerful adverse influence on the jury — but viewed in full context and informed by the expert psychological/psychiatric evidence not before the jury, the entries were not reliable admissions of guilt.

• Faruk Orman v The Queen (2019) CCA: convicted; leave to appeal against conviction refused by the (then) Court of Criminal Appeal, and special leave subsequently refused by the HCA. Filed a petition for mercy under s 327 in 2019, outlining (among other things) denial of a fair trial due to the conduct of Nicola Gobbo as a police informer. The Attorney-General referred the whole case to the CCA, which — under s 327(2) — was required to hear and determine it as if an appeal. The DPP made concessions as to substantial miscarriage of justice; appeal allowed, conviction set aside, acquittal entered.

21 · Commonwealth pardon and quashed-conviction provisions (5CTH, Crimes Act 1914 Pt VIIC)

s	Effect
85ZR — pardons for persons wrongly convicted	Where a person is granted a free and absolute pardon for a Commonwealth or Territory offence because they were wrongly convicted, the person is taken, in any State/Territory, never to have been convicted of the offence for all purposes; and, in a foreign country, taken by any Commonwealth/State authority there never to have been convicted.
85ZS — effect of pardons for persons wrongly convicted	The person is not required to disclose the charge/conviction; it is lawful to claim on oath they were not charged/convicted; the person is not otherwise subject to a legal duty/disability they would not have been subject to had they not been convicted; and anyone who knows (or could reasonably be expected to know) that s 85ZR applies must not, without consent, disclose the fact of the charge/conviction, or take it into account.
85ZT — quashed convictions	Where a person's conviction of a Commonwealth/Territory offence (or, per s 85ZT(2), a State/foreign offence) has been quashed, the person is not required to disclose, for any purpose, the fact they were charged or convicted.
85ZU — effect of quashed convictions	Where non-disclosure is lawful under s 85ZT, it is lawful for the person to claim on oath they were not charged/convicted, and anyone who knows (or could reasonably be expected to know) s 85ZT applies must not, without consent, disclose or take the fact into account.

22 · Amending charges during an appeal (5XAMC)

• General power (CPA s 8, s 165): the court may order a charge-sheet or indictment amended in any manner it thinks fit if it appears defective — before or during a trial or hearing, unless the amendment would cause injustice to the accused.

• Amendment during an appeal: in exceptional cases, an indictment may even be amended during an appeal, to correct a formal defect — e.g. amending the wording of a count to remove an ambiguity or to identify the relevant statutory provision — OAA v R [2010] VSCA 155; Nelson v R (1977) 65 Cr App R 119.

• Prejudice — stage of proceedings: in determining prejudice, the court considers the stage of proceedings at which the amendment is sought — R v Street [1960] VR 669; R v Westerman (1991) 55 A Crim R 353.

• Effect of failing to note the amendment: failure to note the effect of the order on the charge-sheet/indictment does not deprive the order of effect — Ayles v R (2008) 232 CLR 410; [2008] HCA 6.

• Amended documents on appeal from the Magistrates' Court: an amended charge-sheet/indictment is treated as if filed in the amended form (CPA ss 8, 165) — but where a charge-sheet is amended in the MC and then appealed to the CC, an appeal against conviction and sentence is treated as an appeal against the charge-sheet as originally filed (unamended); an appeal against sentence alone is treated as an appeal against the charge-sheet in its final (amended) form — Walters v Magistrates' Court of Victoria [2015] VSC 88 at [116], [119].

• Scope of the amendment power: wide-ranging — allows adding charges, substituting applicable for inapplicable charges, adding/varying particulars, correcting the omission of an essential element, or stating the correct statutory provision. It is not necessary that the original charge-sheet/indictment correctly set out the essential elements or provisions before the power can be exercised — Ayles v R; DPP Reference No 2 of 2001 (2001) 4 VR 55; [2001] VSCA 114; Ciorra v Cole [2004] VSC 416; DPP v Kypri (2011) 33 VR 157; [2011] VSCA 257.

• All offences, including common law: the power to amend an indictment extends to all offences, including common law offences such as perjury — R v Hoser [1998] 2 VR 535.

• Reducing the offending period: the power includes reducing the alleged offending period in a course-of-conduct charge (cl 4A, Sch 1, CPA), where the accused indicates a guilty plea to a specified period within the original charge but not to the remaining period(s) — CPA ss 64A, 181A.

• Procedural courtesy: while the court may amend of its own motion, it should normally raise the matter with the parties and invite submissions — though this may not be necessary where a party raised it but failed to formally apply — CPA s 337; Ayles v R; DPP v Kypri.

• Duplicity/uncertainty: where a charge is bad for duplicity or uncertainty, the prosecutor should elect which offence is charged and amend accordingly — Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77; Linehan v Australian Public Service Association (Fourth Division Officers) (1982) 2 IR 470; R v Hoser; DPP v Kypri.

• Service and re-arraignment: an amendment made in the accused's absence must be served the same way as the initiating document — Ciorra v Cole. Re-arraignment may be appropriate (not always necessary) where the amendment presents a significantly different issue not previously joined — R v Hoser. The prosecution may even amend to add charges after empanelment, provided no injustice; where the amendment is significant, the accused should be re-arraigned — Reid v R (2010) 29 VR 446; [2010] VSCA 234.

• "Injustice" and surprise: a key consideration is whether the amendment would take the accused by surprise — an amendment before evidence is called, with no change to the factual case, is more likely to cause no injustice — Sutton v R (2015) 47 VR 496; [2015] VSCA 251 at [95]. It is not relevant to injustice that the amendment makes conviction more likely (or acquittal less likely) — that will often be the purpose and effect of an amendment — Sutton v R at [89]–[104].

• Limitation periods: a charge-sheet may not be amended to charge a new offence if the limitation period for that offence has expired — that would avoid the limitation period — DPP v Kypri. Amendment outside the limitation period is permissible only if: (a) the unamended charge-sheet sufficiently disclosed the nature of the offence; (b) the amendment does not amount to commencing a proceeding for a new offence; and © the amendment will not cause injustice — CPA s 8; Gilmour v Midways (1980) 3 A Crim R 196; Ciorra v Cole; Woolworths (Victoria) Ltd v Marsh, unreported, VSC, 12 June 1986; McMahon v DPP, unreported, VSCA, 20 June 1995; Broome v Chenoweth (1946) 73 CLR 583 per Dixon J.

• "Sufficiently disclosed" — the test: the charge-sheet must contain "a statement of the offence and particulars giving reasonable information as to the nature of the charge" — Glenister v Magistrates' Court of Victoria [2014] VSC 265 at [169]; it will not sufficiently disclose the offence if it omits essential factual or legal elements — Glenister. Only charges validly drafted in their original form may therefore be amended after the limitation period — Glenister; Walters v Magistrates' Court of Victoria [2015] VSC 88 at [87].

Currency watch

⚠ Fox v DPP; Bant v Grant; Nunn v Pezzimenti [2022] VSCA 38 — the current framework for charge-sheet validity and amendment. Three appeals heard together, addressing when a charge-sheet/charge may be invalid, and when a charge-sheet can be amended after the limitation period has expired (summarised by the Court at [73]). Key observations: filing a charge-sheet gives the Magistrates' Court jurisdiction to hear and determine the charges; an invalid charge-sheet may mean the court has no jurisdiction; a defective charge may mean the court has jurisdiction but the charge cannot be made out. CPA Sch 1 sets out the requirements for charges (cl 1–4) and charge-sheets (cl 5–6); a charge-sheet failing to comply with Sch 1 cl 1 is not necessarily invalid by reason of that failure alone (s 9(1)). Sch 1 cl 1(b) requires a charge to contain particulars necessary to give reasonable information about the nature of the charged offence — informed by the common law. Where a charge-sheet fails to comply with Sch 1 cl 1, it may still be capable of amendment under s 8, even if it fails to include an essential element, fails to disclose an offence known to law, or would have been a nullity at common law — Flanagan v Remick and Glenister v MCV should no longer be followed on that point. Where the limitation period has not expired, the amendment power is broad, constrained only by the requirement of no injustice (s 8(1)). Where it has expired, greater constraints apply: (a) the unamended charge-sheet must sufficiently disclose the nature of the offence (s 8(4)(a)) — not the same test as Sch 1 cl 1, since a charge may fail Sch 1 cl 1 yet still sufficiently disclose the offence; (b) the amendment must not amount to commencing a proceeding for a new offence (ss 8(3), 8(4)(b)); © the amendment must not cause injustice (s 8(4)©). DPP v Kypri (which concerned amendment under s 50 Magistrates' Court Act (Vic)) continues to apply, except in one respect: MCA s 50 permitted amendment after the limitation period if the true nature of the offence — though not apparent from the charge-sheet — was apparent from other pre-expiry material (e.g. the brief of evidence). Now, CPA s 8(4)(a) requires that the charge-sheet itself sufficiently disclosed the nature of the offence prior to amendment — reliance on the brief alone no longer suffices.

23 · Currency watch

• [2024] HCA 30 — Moore v The King resolves the standard-of-review question flagged as "pending" in earlier notes (following Moore (a pseudonym) v The King [2023] VSCA 236): the House v The King standard applies to discretionary decisions, the Warren v Coombes correctness standard applies to decisions with a single legally correct outcome, and this dichotomy governs both interlocutory and post-conviction appeals alike. Verify the exact judgment date before relying — not confirmed in the sources reviewed for this sheet.

• [2025] HCA 20 — Brawn v The King (cited in some sources as Mathew Cucu Brawn v The King) refines the s 276(1)(b)/© materiality test to a low bar: could the error realistically have affected the jury's reasoning to its verdict on the trial that actually occurred.

• [2025] HCA 24 — MDP v The King, the Commonwealth companion case to Brawn, addresses the same materiality question under the Commonwealth common-form appeal provisions.

• [2025] HCA 9 — The King v ZT confirms an appellate court reviewing a jury's assessment of recorded evidence should itself view/listen to a sufficient part of that evidence before concluding the jury enjoyed no relevant advantage.

• 28 December 2025 — new committal framework commenced (Justice Legislation Amendment (Committals) Act 2025 (Vic)) — relevant upstream of any appeal where the committal pathway (filing hearing/committal mention/case conference/committal hearing) is in issue; see the currency notes for the full committal reform detail, which is outside the scope of this Appeals sheet.

• 2019 — Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) inserted CPA Pt 6.4 (second or subsequent appeal against conviction on fresh and compelling evidence) — a standing right, additional to (not a replacement for) the s 327 petition-for-mercy pathway.

• Ongoing — several citations in this sheet are reproduced exactly as given in the source practitioner notes (case name only, no reported citation) — e.g. R v Wakime, R v Welford & Anor, R v Weston, DPP v Zhuang, DPP v O'Neill, Kumar v R, Guariglia v The Queen, R v Gee, R v Celep, R v De Marchi, Kohari. Verify full citations before relying in submissions or a written case.