11. The role of victims in appeal processes
11.1 In Victoria, the prosecution or the offender may appeal to the Court of Appeal during the trial process against an interlocutory decision made by a trial judge. The prosecution or offender may also appeal against a sentence imposed after conviction. An offender may appeal against a conviction. The prosecution may apply for a fresh trial after acquittal in limited circumstances.
11.2 This chapter outlines the procedures under Victorian law for each of those types of appeal, before turning to consider procedures in South Australia, New South Wales and the United States which permit the involvement of the victim. It then canvasses some options for reform.
11.3 It should be noted that much of the content in this chapter is also covered in Chapter 7 (pre-trial procedures) and Chapter 9 (sentencing) and that this reference is not concerned with the substantive laws governing appeals.
The current system in Victoria
11.4 An interlocutory decision is a decision made either before or during the trial. Interlocutory decisions often relate to evidentiary matters, such as a ruling by a judge that certain evidence is not admissible, or decisions about the conduct of the trial, including a decision to sever charges (which means separate proceedings for one or more charges).
11.5 Appeals are only allowed with the permission (leave) of the Court of Appeal. The Court of Appeal will only give leave for an appeal to proceed in the following circumstances:
• If the decision is about the admissibility of evidence, the trial judge certifies (advises the Court of Appeal) that the prosecution case would be eliminated or substantially weakened without the evidence.
• If the decision is not about evidence, the trial judge certifies that the decision is of sufficient importance to the trial to justify an interlocutory appeal.
• If the decision is made after the trial commences, the trial judge certifies that either the issue the decision relates to was not able to be identified before the trial, or the party seeking leave was not at fault for failing to identify it.
11.6 The Court of Appeal must also be satisfied that the appeal is in the interests of justice, having regard to:
• the disruption or delay that might be caused to the trial process
• whether the determination of the appeal may render the trial unnecessary or reduce the length of the trial
• whether the determination of the appeal may ensure the proper conduct of the trial or reduce the likelihood of a successful appeal against conviction.
11.7 Victims do not have a role in interlocutory appeals.
Appeal against conviction
11.8 A person convicted of an offence may appeal to the Court of Appeal against conviction but only if the Court of Appeal gives the person leave to appeal.
11.9 If the conviction is successfully appealed, the Court of Appeal may:
• order a new trial
• enter a judgement of acquittal
• find the accused not guilty by reason of mental impairment.
11.10 As noted in Chapter 10, a victim ‘may be heard’ if the Court of Appeal has set aside an offender’s conviction and is considering ordering that a compensation or restitution order made in connection with the conviction should not take effect.
11.11 Victims do not have a role in an appeals against conviction.
Appeal against sentence
11.12 An offender may appeal against a sentence but only if the Court of Appeal gives the offender leave to appeal.
11.13 Unlike the offender, the Director of Public Prosecutions (DPP) does not need to seek leave to appeal. However, the Criminal Procedure Act 2009 (Vic) requires that before bringing an appeal, the DPP must:
• consider that there is an error and that a different sentence should be imposed; and
• be satisfied that an appeal is in the public interest.
11.15 Victims do not have a role in appeals against a sentence.
Status of victim impact statement in the appeal
11.16 The Department of Justice’s 2014 review of victim impact statement reforms highlighted concern by some victims about their inability to provide an updated victim impact statement in an appeal against a sentence. However, appeals relate primarily to matters of law. As a result, there are restrictions on when the Court of Appeal will consider new evidence.
11.17 The Criminal Procedure Act prohibits the Court of Appeal from increasing a sentence based on evidence that was not submitted as part of the original trial or sentencing proceedings.
11.18 Whether a further victim impact statement could be provided as part of an appeal against sentence has not been considered by the courts.
11.19 The Department of Justice report also noted that less than a third of appeals result in a sentence being re-opened. Drawing on interviews with victims about the use of victim impact statements in appeal proceedings, the report concluded:
There is a real risk that providing for and encouraging victims to provide an updated VIS at the appeal stage will create an expectation that the document will be referred to and relied on when, in a significant proportion of cases, this will not occur. The satisfaction provided to some victims may be offset by the disappointment of others. Providing for a further VIS to be tendered and/or read aloud at the appeal stage is problematic.
Appeal against compensation or restitution order
11.20 An appeal of a restitution or compensation order can only be made by the DPP and only in cases where the DPP is satisfied that an error has occurred and that it is in the public interest to appeal. Victims themselves do not have a statutory right to appeal. However, a dissatisfied victim can commence proceedings for damages in the court’s civil jurisdiction.
DPP appeal against an acquittal
11.21 Traditionally, the rule relating to double jeopardy meant that a person acquitted of an offence could not be tried again for the same offence. Qualifications have been placed on this rule by the Criminal Procedure Act.
11.22 The DPP may apply to the Court of Appeal for an order setting aside a previous acquittal and authorising a new trial on the basis that:
• the previous acquittal was tainted
• there is fresh and compelling evidence
• the person should be tried for an administration of justice offence, such as perjury, perverting the course or justice or bribing a judge, related to the trial resulting in the acquittal.
11.23 If the DPP’s application is successful, a trial will then proceed on charges contained in a direct indictment signed and filed by the DPP in the appropriate trial court.
Alternative processes and procedures
11.24 The following section considers some other jurisdictions where victims are given a role in appeal procedures.
Right to appeal interlocutory decisions
New South Wales
11.25 Victims in New South Wales have standing in pre-trial applications seeking leave to access or use documents covered by the sexual assault communications privilege provisions of the Criminal Procedure Act 1986 (NSW). A more detailed discussion of these provisions is contained in Chapter 7 of this consultation paper.
11.26 The Criminal Appeal Act 1912 (NSW) allows a non-party, such as a victim to whom a protected confidence relates, to appeal to the Court of Criminal Appeal against the pre-trial ruling. An appeal can be brought in relation to either:
• a decision to allow access to, or use of, a protected confidence
• a determination that a document or other piece of evidence does not contain a protected confidence.
11.27 As noted in Chapter 7, victims in the United States can appear and be heard as part of an application made by an accused to use evidence relating to the victim’s sexual history. There is at least one case in which a victim was permitted to appeal against a pre-trial order permitting the defence to use evidence of sexual history.
Right to request that the DPP consider an appeal
11.28 In South Australia, the ‘Declaration of principles governing treatment of victims’ contained in the Victims of Crime Act 2001 (SA) includes a provision allowing the victim to request that the prosecutor consider bringing an appeal. The victim can make this request in relation to any court determination against which the prosecution is entitled to appeal. The request must be made within 10 days of the court determination in question and must be given ‘due consideration’ by the prosecutor.
11.29 A breach of the declaration of principles does not by itself create a right to commence legal proceedings. However, the Commissioner for Victims’ Rights is empowered to help victims in dealing with prosecutors and can require the Office of the Director of Public Prosecutions (ODPP) to consult with the Commissioner about steps that can be taken to further the interests of a victim.
11.30 Further, section 32A of the Victims of Crime Act 2001 (SA) provides that a victim may exercise any right within the Victims of Crime Act or any other law. A victim can opt to exercise his or her rights through a lawyer, the Commissioner, or another prescribed person.
11.31 It would appear that a lawyer or the Commissioner, acting on behalf of a victim, could make a request for the ODPP to consider an appeal, and that, if necessary, the Commissioner could intervene and compel the ODPP to consult with the victim.
Discussion and options for reform
11.32 The victim’s role in interlocutory and other appeals arises as a corollary to the suggestion that victims should be able to participate at various stages of the criminal trial process, or in relation to particular issues.
11.33 Permitting victims to make submissions on questions of law before a trial judge, as permitted in the International Criminal Court, gives rise to the question of whether victims should have a role in an appeal against the judge’s ruling. Such a role might include the right to commence appeal proceedings, or be limited to a right to participate in an appeal commenced by the DPP. These reforms can be characterised as making victims prosecuting witnesses.
11.34 Consideration might be given to whether the procedures in New South Wales and the United States, which permit victims, in limited circumstances, to seek leave to appeal against a pre-trial ruling that impacts on their personal interests, could be adopted in Victoria. There is the possibility that allowing victims to appeal in such contexts may cause delays in the trial process, add complexity to the appeal hearing, and impact on the fair trial rights of the accused. However, allowing victims to appeal rulings where their privacy or other interests are at stake arguably represents a fair balancing of the rights of the accused and the rights of the victim.
11.35 Issues discussed Chapters 7–9, associated with giving victims standing to make submissions and introduce evidence at various stages of the criminal trial process, extend to whether victims could or should be involved in subsequent appeal proceedings. As they have been canvassed in some detail already, the arguments will not be repeated here.
11.36 Other reform proposals that can be characterised as participatory-witness reforms include:
• permitting updated victim impact statements to be provided where an offender is to be resentenced
• granting victims the right to request that the DPP consider an appeal, or the right to be consulted in relation to decisions about bringing an appeal. Such proposals may resemble the provisions that exist in South Australia.
50 Should a victim have standing to seek leave to commence an interlocutory appeal? If so, should this be limited to circumstances where the ruling impacts on the personal interests or rights of the victim?
51 Should victims have a right to be consulted by the prosecution or to request that the DPP consider an appeal on any or all matters that the DPP is permitted to seek leave to appeal?
52 Should a victim have standing to participate in an interlocutory appeal commenced by the prosecution or the defence? If so, how and in what circumstances?
53 Should a victim have standing to participate in a post-verdict appeal commenced by the defence or prosecution?
54 Should the victim impact statement scheme, as it applies in sentencing hearings, also apply when the Court of Appeal re-sentences an offender?
Criminal Procedure Act 2009 (Vic) ss 3, 295.
Ibid s 295(3). A party may make an application to the Court of Appeal to review a decision of the trial judge to refuse certification: s 296.
Ibid s 297.
Ibid s 274. The grounds on which the Court of Appeal must allow an appeal against conviction are set out at s 276.
Ibid s 277. Section 277 sets out what order must be made depending on the circumstances of the successful appeal.
Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 2.47. A compensation or restitution order made under ss 84, 85B or 86 of the Sentencing Act 1991 (Vic) is usually stayed (suspended) for the duration of the appeal. If a conviction is set aside, the compensation or restitution order will not take effect unless the Court of Appeal orders otherwise. See Criminal Procedure Act 2009 (Vic) s 311.
Criminal Procedure Act 2009 (Vic) s 278. The Court of Appeal may impose a more severe sentence, but must warn the appellant of that possibility as early as possible during the hearing: s 281(3).
Ibid s 287.
Ibid ss 281, 289.
Ibid ss 282, 290.
Department of Justice, Victim Impact Statement Reforms in Victoria: Interim Implementation Report (Victorian Government, 2014) 72–5.
New evidence can only be submitted to the Court of Appeal when done so in the ‘interests of justice’. See Criminal Procedure Act 2009 (Vic) ss 317, 318.
Ibid s 321 (except in two limited circumstances: when the new evidence relates to the offender’s failure to comply with an undertaking to give evidence, or where the court that determined the original sentence was misled).
Department of Justice, Victim Impact Statement Reforms in Victoria: Interim Implementation Report (Victorian Government, 2014) 74.
Criminal Procedure Act 2009 (Vic) s 287 provides for the right of the Crown to appeal a sentence. Section 3 of the Act defines ‘sentence’ to include restitution and compensation orders made under the Sentencing Act 1991 (Vic).
Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345,  (Buchanan JA).
Criminal Procedure Act 2009 (Vic) s 327H. See also ss 327D (for meaning of tainted acquittal), 327C (for meaning of fresh and compelling evidence), 327B (for definition of administration of justice offence).
Ibid s 327F. See ss 327O, 327P for the powers of the Court of Appeal upon successful appeal. See also Director of Public Prosecutions Victoria, Director’s Policy: Retrials and Reinvestigations After Acquittals (undated).
Criminal Appeal Act 1912 (NSW) s 5F(3AA)–(3AB). For cases involving an appeal by a victim as a protected confider see KS v Veitch  NSWCCA 186; KS v Veitch (No 2) NSWCCA 266; PPC v Williams  NSWCCA 286. An agency or organisation in possession of documents containing a protected confidence can also seek leave to appeal.
An appeal can only be made if the Court of Criminal Appeal gives permission (leave); or if the trial judge or magistrate ‘certifies that the decision is a proper one for determination on appeal’: Criminal Appeal Act 1912 (NSW) s 5F(3AB).
Federal Rules of Evidence 28 USC § 412.
Doe v United States, 666 F 2d 43 (4th Cir, 1981).
Victims of Crime Act 2001 (SA) s 10A.
Ibid s 5(3).
Ibid ss 16(3)(b), 16A(1).