Explainers: Court of Appeal

The Court of Appeal is the highest court in Victoria. People who consider a decision in their case in the Supreme or County Court was wrong can apply to have that decision reviewed by the Court of Appeal.

The Court of Appeal considers each side's arguments and determines whether the law was applied correctly.

There are a number of judges in the Court of Appeal, including the President of the Court of Appeal and the Chief Justice.

The judges have significant legal knowledge and experience, and their published judgments stand as important legal precedents guiding decision-making across all levels of the justice system in Victoria.

It's a busy court. In an average year, many hundreds of criminal and civil appeals and applications are heard. There is no automatic right to appeal. Leave to appeal is required.

This is designed to ensure that applications without merit are refused at an early stage. Appeals are usually heard by three judges. Judgments are unanimous or decided by majority if there is disagreement.

In practice, and unless an application for leave has no obvious merit, an application for leave is determined at the same time as the appeal is heard.

If the Court of Appeal allows the appeal, that is, if the judges find there was a legal error, the appeal judges can order that the case be reheard by the court or tribunal which made the original decision, or the appeal judges can go on to decide the case themselves.

If the decision that the accused was guilty is overturned, the Court of Appeal may quash the conviction and order a new trial, acquit the person or substitute a conviction on an alternative offence that was opened to the jury.

If the sentence imposed on a convicted person is too high, the Court of Appeal may reduce the penalty. The Director of Public Prosecutions can also appeal against a sentence on the basis that it is inadequate.

The Court of Appeal can impose a higher sentence if it decides there was an error and a different sentence should be imposed. If the Court of Appeal decides there was no legal error, the appeal will be dismissed and the original decision stands.

If a party believes there was an error made by the Court of Appeal, they can apply to the High Court of Australia.

An appeal is a legal challenge in relation to all or part of a criminal or civil judgment or decision. It is not enough to simply disagree with the outcome of a case - an appeal must be based on an alleged mistake in the way the hearing was conducted or decided.

Grounds for appeal could be that the judged made a legal error in what was admitted into evidence, or that he or she failed to take into account an aspect of the case that was important.

An appeal does not involve rehearing all of the evidence and arguments in the original trial – it focuses on whether an error was made at trial and in particular whether the relevant law was correctly applied. Parties outline their arguments in written submissions before the hearing and they answer questions from the bench, which is usually made up of three judges. The court’s decision on the appeal can be unanimously, or made by a majority.

Judges in the Court of Appeal and their staff are assisted by judicial registrars, registry lawyers and registry officers.

It's easiest to describe these roles by explaining the appeal process. To begin an appeal, a party must file their appeal papers with the Court of Appeal Registry.

Both criminal and civil appeal legislation requires parties to file detailed written submissions setting out their arguments, known as written cases, to help speed up the hearing and determination of appeals.

The registry lawyers and officers assess the documents to ensure they satisfy all the necessary requirements. Registry lawyers are the central contact point with the parties ensuring written cases and supporting documentation are filed in line with established timelines.

All matters in the Court of Appeal are case managed by a judicial registrar and registry lawyers rather than by the judges who hear the matters.

Once all the parties have filed their written cases and a list of previously decided cases and any documents or other material they will rely on, a judicial registrar lists the matter to be heard. If there are preliminary issues involved, a judicial registrar holds a mention hearing to resolve them.

In a way, the judicial registrar acts as the Court’s coordinator, managing cases to ensure they are heard promptly.

Once the matter is referred to the judges to determine, they are assisted by their associates and chamber staff who manage the courtroom and helped with drafting orders and undertaking legal research.

The President of the Court of Appeal is the second most senior judge on the Supreme Court after the Chief Justice.

My role is to represent the Court of Appeal and my fellow judges, oversee the effective functioning of the Court, and perform judicial duties. I still hear a lot of appeals.

However, inside a courtroom, no judge carries more legal weight in decision making than any other.

Outside the courtroom, my role also includes making improvements to legal processes in the Court of Appeal. Improvements made by past Presidents have included reforming and streamlining the process for criminal and civil appeals. One reform to criminal appeals has been to make it possible to appeal a ruling made in the course of a trial before the matter is finalised. This saves running the whole of the trial where there has been an error which might require a re-trial. Another is the introduction of the Jury Directions Act which gives criminal judges a framework for instructing juries with the aim of reducing the number of appeals.

As the third President of the Court of Appeal, I look forward to ensuring the Court continues to provide excellent service to the community.