Criminal Appeals Review

Criminal Appeals Review

The review of criminal appeals was established in response to community concerns over some high profile criminal appeals.

It carefully scrutinised 111 appeals against sentence which were funded by Victoria Legal Aid in the 2013 calendar year and also looked at longer term trends in the Court of Appeal and our funding of criminal appeals.

As part of the review, Victoria Legal Aid also consulted victims of serious crime, families of offenders and representatives of the courts, prosecution agencies and private legal profession.

Read the full report Criminal appeals review (doc, 1.53 MB).

Summary

The review of Victoria Legal Aid’s appeals process has found that the number of criminal appeals in Victoria has almost halved over the past five years.

This decline in appeals has been driven by reforms in the Court of Appeal, legislative reform and Victoria Legal Aid guidelines that were developed to work in partnership with these new processes.

In 2008–2009, more than one in five County Court and Supreme Court matters in Victoria proceeded to the Court of Appeal. By 2012–13 this figure had reduced to about one in nine. Victoria Legal Aid funded 63 per cent of all matters that were appealed to the Court of Appeal*. The balance were either privately funded or involved persons appearing on their own behalf.

This reduction in appeal rates means Victoria is now largely consistent with the national average of one in 10 matters going on to the Court of Appeal. Indeed, Victoria Legal Aid’s guidelines have contributed to the success of the reforms. This review shows that there are now fewer sentence appeals lodged and quicker determination of appeals.

This means less trauma for victims of crime and their families, finality for accused people and swifter justice at a lower cost to the entire community.

Overall, the review has found a roughly even split between legally aided leave applications that are refused and applications that are granted by the court and proceed to a full hearing.

The outcome of those legally aided appeals that proceeded to a full hearing resulted in 69 per cent being upheld with a new sentence imposed, and 28 per cent were dismissed with the original sentence affirmed.

Applying trends observed from the analysis done on the legally aided review sample to all appeals lodged suggests that approximately 4 per cent of all sentences for serious criminal cases are varied on appeal.

For Victoria Legal Aid, this has resulted in substantially fewer legally aided appeals and less public money being spent on higher court appeals. In 2013–14, our overall appeals expenditure including de novo appeals in the County Court not the subject of this review, reduced to $2.9m from $3.4m in 2012–13***. The full cost of the indictable or higher court appeals component, including program management and corporate overheads was $0.9m, which in turn accounts for a little over half of one per cent of our overall expenditure.****

However, as the impact of recent Court of Appeal reforms becomes clearer and the court’s own processes have developed, we identified areas where further safeguards should be adopted to prevent cases with questionable merit proceeding to appeal.

* Available data for the national average does not include Tasmania, the Northern Territory or the Australian Capital Territory. Commonwealth Government Productivity Commission, Report on Government Services 2014, Volume C, Chapter 7 – Table 7A.1.

** Two cases (3 per cent) did not fall into either category. In one matter a re-trial was ordered given there was a conviction appeal alongside the sentence appeal and the other was an order to set aside.

*** These figures include the attribution of corporate overheads and assessment costs resident in legal practice.

**** Indictable or higher court appeals expenditure includes Court of Appeal conviction appeals and High Court appeals.

Outcomes

With the benefit of the review findings, Victoria Legal Aid has decided to take the following actions:

  1. We will work with the Court of Appeal and the Office of Public Prosecutions to develop processes that support victims by providing timely, accurate information when an appeal is lodged. 

A number of the victims we consulted found out about appeals through the media, at almost the same time they were lodged with the Court, which was particularly traumatic. 

While victims felt that great gains had been made over the last few years around giving victims a voice within the trial and plea process, many did not feel those gains had extended to appeals, and that they continue to be under acknowledged in Court of Appeal proceedings.

Although we do not have specific responsibilities to support victims through the appeals process, it does have an institutional role in working with others in the justice system to bring about improvements.

  1. We will provide training alongside other key stakeholders in relation to preparing high quality merits advice and running appeals.

Merits advice underpins our decision to fund appeals and additional training and practice support will be provided to ensure the required standards are met.

Both outcomes one and two recognise there are improvements that can be made to the way that we undertake our broader role in the justice system. Both align with our statutory obligation to provide legal aid in an efficient, effective and economic way such that the community is provided with improved access to justice and legal remedies. 

  1. We will introduce a guideline for elections to renew an appeal that has been refused by a single judge.

We will introduce a new guideline to fund applicants in election hearings to avoid wasted court time and victim distress when applicants represent themselves. 

  1. We will introduce an amendment to the appeals guideline which will prescribe the contents of merits advices for sentence appeals which rely solely on the ground of manifest excess.

The review found that appeals relying on manifest excess are less likely to succeed and we will introduce more stringent requirements for the merits advice that counsel prepare for this category of appeal prior to approval of funding.

  1. We will introduce a more rigorous grants approval process for sentence appeals which are heard via the court’s one-step process.

Given the court now hears more matters via a combined leave and appeal hearing rather than considering leave before appeal hearings, additional scrutiny will be applied in the merits assessment process before funding these sentence appeals.

Read the full report

Read the Criminal appeals review (doc, 1.53 MB).