this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

LIV offices remain closed until further notice.

Though we are working remotely to support our members.

Find out more
Select from any of the filters or enter a search term

Judicial College of Victoria: Learning from upheld appeals

Judicial College of Victoria: Learning from upheld appeals

By Matthew L Weatherson

Courts Practice & Procedure 


The Judicial College of Victoria has analysed successful criminal appeals in Victoria in 2019–20.

The Judicial College of Victoria’s (JCV) Criminal Charge Book, Victorian Sentencing Manual and Criminal Proceedings Manual are its most widely used bench books – key resources for the Victorian judiciary and profession. A central objective of these resources is to reduce the risk of error and so improve the efficiency and reliability of the court process. 

Keeping these resources up to date involves closely monitoring caselaw and new legislation to respond to new developments in the law. 

In 2019–2020, the Court of Appeal upheld the following criminal appeals:

  • 25 appeals against conviction
  • 50 appeals against sentence 
  • four interlocutory appeals
  • one appeal against conviction and sentence, on different grounds
  • one appeal concerning the grant of bail.

With 2393 criminal trials and pleas conducted across the Supreme and County Courts in the 2018–2019 financial year, the data show successful appeals in just less than 3.2 per cent of cases.1

More important than the numbers is why those appeals succeeded. This requires a shift of focus from asking, “what does this case mean?” to asking “what trends can we find?” Such information helps inform the JCV’s education mission. By knowing where errors are occurring, we can see if there are systemic problems to address through resources and education. 

For this purpose, the JCV examined each of those decisions to identify the successful grounds, and to group those successful appeal grounds into five classes of error. Each appeal is only counted once per class, but may be counted in more than one class where there were successful grounds in different classes of error. 

Conviction appeals

Of the 26 successful conviction appeals, errors were divided into three primary categories:

  • errors by the jury
  • errors by the judge
  • errors by the parties.2

This division provides a useful framework for identifying where there are issues in the trial process. In drawing a distinction between errors by the judge and errors by the parties, it is important not to overlook the ultimate duty of a trial judge to ensure a fair trial. It is, however, well established that sometimes errors by a party can cause a trial to fail catastrophically, such that nothing a judge can do can fix it. It is, therefore, appropriate to remember there are heavy responsibilities on both sides of the bench.

Jury errors were identified in seven cases. For the purpose of this analysis, jury errors were limited to cases where the appeal was allowed on the basis that the verdict was unreasonable or could not be supported by the evidence.3 Two of these were cases where it was not open for the jury to exclude involuntariness in cases involving driving4 and two were cases where it was not open to infer murderous intention, as distinct from a lesser state of mind.5

Eleven cases included errors by the trial judge, including making prohibited comments,6 wrong decisions on the admissibility of evidence,7 or the scope of offences,8 failing to properly control cross-examination under the Evidence Act 2008 (Vic) s389 or failing to give necessary directions.10

Eleven cases involved errors by the parties, including prosecution errors such as inadequate puttage,11 improper attacks on the defence case,12 failure of disclosure13 or charging errors.14 Defence errors included breaching the fiduciary duty to a client15 and failing to tender exculpatory evidence.16

Sentence appeals

Sentencing appeals were grouped into cases involving errors of reasoning or process, and errors of result. 

Reasoning or process errors led to successful appeals in 17 cases and included issues such as moral culpability assessment,17 procedural fairness,18 identification of maximum penalty19 and calculation of sentence.20

Result errors were identified in 39 cases, including 22 cases of manifest excess, 13 cases of manifest inadequacy and four cases of parity.21

Interlocutory appeals

Three of the successful interlocutory appeals involved whether to grant a permanent stay,22 while one involved whether the Evidence Act 2008 (Vic) s128 had abrogated the common law.23


Every case that goes wrong does so in its own way. Despite the number of result errors, it is important to remember that manifest excess and manifest inadequacy are statements of conclusion, drawn when the appellate court infers that the discretion has miscarried, without the cause of the error being discoverable.24

It is reassuring to see no systemic sources of error in the past year. The most frequent errors are sentencing result errors and unreasonable jury verdicts, both intrinsically difficult to address. The former, because of the discretionary nature of sentencing and the often non-specific nature of the error, and the latter due to the highly fact-specific nature of such errors and the fact that jurors are called to perform a difficult task, without training, on a single occasion.

The closest to a possible systemic issue is excessive zeal on the part of prosecuting counsel, but even that was a rare occurrence in absolute terms. However, remembering that appeals tend to occur 12-18 months after trials, this is a historical look at what went wrong in the 2018-2019 period, and may say little about the challenges confronting judges and practitioners now. ■

Matthew L Weatherson is judicial information adviser at the Judicial College of Victoria.

  1. Data taken from Supreme Court of Victoria, Annual Report, 2017-2019, 10; County Court of Victoria, Annual Report, 2018–2019, 7.
  2. One case, Brown v The Queen [2020] VSCA 26 could not be categorised in this way as it involved fresh evidence discovered only after sentencing through the contents of the victim impact statement.
  3. Criminal Procedure Act 2009 s276(1)(a). Carson v The Queen [2019] VSCA 317 and Youssef v The Queen [2019] VSCA 240 both involved jury irregularities. Those grounds have been counted as errors by the trial judge in responding to the irregularity, as this category is exclusively about jurors reaching verdicts that were unreasonable or not supported by the evidence.
  4. Ferguson v The Queen [2020] VSCA 166; Pansear v The Queen [2020] VSCA 79.
  5. Freeburn v The Queen [2020] VSCA 155; Astbury v The Queen [2020] VSCA 132.
  6. Pyliotis v The Queen [2020] VSCA 134.
  7. Murillo v The Queen [2020] VSCA 68; Jacobs v The Queen [2019] VSCA 285.
  8. Vyater v The Queen [2020] VSCA 32; Taylor v The Queen [2020] VSCA 50.
  9. Murillo v The Queen [2020] VSCA 68.
  10. Wade v The Queen [2019] VSCA 168; Jacobs v The Queen [2019] VSCA 285.
  11. Ritchie v The Queen [2019] VSCA 202; Astbury v The Queen [2020] VSCA 132.
  12. Ford v The Queen [2020] VSCA 162.
  13. Roberts v The Queen [2020] VSCA 58.
  14. Dhal v The Queen [2020] VSCA 90; Pate v The Queen [2019] VSCA 170.
  15. Orman v The Queen [2019] VSCA 163.
  16. Ford v The Queen [2020] VSCA 162; Hartley v The Queen [2020] VSCA 62.
  17. See, eg, Bausch v The Queen [2019] VSCA 235 (relevance of drug taking); Pan v The Queen [2020] VSCA 42 (relevance of road design); Marks v The Queen [2019] VSCA (victim impact).
  18. Farah v The Queen [2019] VSCA 300; Brown v The Queen [2020] VSCA 60.
  19. Gopinath v The Queen [2017] VSCA 172; Lim v The Queen [2019] VSCA 182.
  20. Nov v The Queen [2020] VSCA 11; Pitt v The Queen [2020] VSCA 73.
  21. For this purpose, Frost & Dean v The Queen [2020] VSCA 53 is counted as a manifest excess case, though a parity ground also succeeded, to avoid double-counting.
  22. Pound v The Queen [2019] VSCA 279; DPP v Terrell [2019] VSCA 306; McGee v The Queen [2020] VSCA 146
  23. DPP v Peters [2019] VSCA 193.
  24. House v The Queen (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321.

Views expressed on (Website) are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV).

The information, including statements, opinions, documents and materials contained on the Website (Website Content) is for general information purposes only. The Website Content does not take into account your specific needs, objectives or circumstances, and it is not legal advice or services. Any reliance you place on the Website Content is at your own risk.

To the maximum extent permitted by law, the LIV excludes all liability for any loss or damage of any kind (including special, indirect or consequential loss and including loss of business profits) arising out of or in connection with the Website Content and the use or performance of the Website except to the extent that the loss or damage is directly caused by the LIV’s fraud or wilful misconduct.

Be the first to comment