James v English [2023] VSCA 46

James v English [2023] VSCA 46 | Case summary | Zoe

Warren James, whom we shall refer to as 'the applicant', has filed a notice of application for leave to appeal against conviction ('the notice'), purportedly to challenge orders made by the County Court in its appellate jurisdiction on 30 September 2022. It is clear that the proceeding is incompetent and must be dismissed. Our reasons follow.
On 5 April 2022, the applicant was found guilty in the Latrobe Valley Magistrates' Court of failing to stop a vehicle on police direction;[1] unlicensed driving;[2] and failing to produce a licence on request.[3] The magistrate sentenced him to an adjourned undertaking of 12 months' duration, and cancelled his driver's licence, imposing a six month disqualification period.
Subsequently, the applicant appealed against sentence and conviction to the County Court, sitting at the Latrobe Valley;[4] and, on 30 September 2022, a judge of that Court found the charges proven and sentenced the applicant to an adjourned undertaking without conviction from 30 September 2022 to 4 April 2023. The judge also cancelled the applicant's driver's licence and disqualified him for a period of six months.
On 24 November 2022, the applicant filed the notice in the Court of Appeal Registry. The notice states that the applicant wishes to appeal to the Court of Appeal against the decision of the County Court under s 10(1)(c) of the Supreme Court Act 1986, which - subject to that Act - gives the Court of Appeal jurisdiction to hear and determine 'all appeals from the County Court constituted by a Judge of that Court'. Plainly, however, s 10(1)(c) has no application, since it is concerned with appeals in civil proceedings under s 74 of the County Court Act 1958, not criminal proceedings.
All appeals in criminal matters are governed by the Criminal Procedure Act 2009. That Act provides two avenues of appeal to 'a person convicted[[5]] of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3':[6] first, as occurred here, the person may appeal to the County Court under s 254; or, secondly, the person may appeal to the Supreme Court on a question of law under s 272. Importantly, once a person has exercised his or her right to appeal to the County Court under s 254, his or her rights of appeal are - save for one exception - exhausted. The exception - which does not apply to the applicant's case - is found in s 283(2)(a), which permits a person sentenced to imprisonment on appeal to the County Court to appeal (by leave) to the Court of Appeal if, in the proceeding that is the subject of the appeal, the Magistrates' Court had not ordered that the person be imprisoned.

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