Plaintiff v First Defendant

1 On 11 February 2022, in the Magistrates' Court at Wonthaggi, Alex Grivas pleaded to charges relating to burglary, theft, dealing with property suspected of being proceeds of crime and recklessly causing serious injury. He was convicted and sentenced to a term of imprisonment.

2 Later that day, pursuant to s 255(1) of the Criminal Procedure Act 2009 (Vic) (the 'Act'), Mr Grivas filed a notice of appeal against sentence alone. The reason for appeal was stated to be 'that the punishment is excessive'.[1]

3 By email dated 6 June 2022, Mr Grivas' solicitor advised, relevantly, as follows -

The Sentence Appeal of Alex Grivas is listed on Thursday, 9 June at 9am.

...

I ... advise that we now have instructions to lodge an Appeal against conviction on the charge of Recklessly Causing Serious Injury.

The appeal notices will be filed and served tomorrow.

We understand that the Appellant will have to apply that Leave to Appeal be granted, before that Appeal can proceed.[2]

4 The hearing did not proceed on 9 June 2022 and written submissions were thereafter exchanged.[3]

5 In substance, the informants contended that Mr Grivas' application should be treated as an application for leave to appeal against 'conviction and sentence' out of time.[4] Mr Grivas stated that he did not make such an application, 'unless the Court finds that such leave is required'. He also submitted that -

Upon the proper construction of Part 6.1 of the Criminal Procedure Act 2009, an Appellant retains an essentially unfettered right to plead not guilty, having filed a notice of appeal within time. The Act contemplates (and the practice of Registry reflects) that a single Notice of Appeal is to be filed as the initiating process in any appeal. It follows that the Notice can be amended. That is consistent with the rule that an Appellant is not bound by his/her previous plea (s255). A rehearing occurs under s256.[5]

6 The matter came on in the County Court at Latrobe Valley on 19 August 2022. Among other things, a County Court judge ordered that -

Application to amend Notice of Appeal granted. Appeal [amended] to include Appeal Against Conviction on charge of recklessly cause serious injury.[6]

7 His Honour's reasoning emerges from an exchange with counsel.[7] Among other things, his Honour stated -

... I grant that leave pursuant to section 412 [of the Criminal Procedure Act] and my ruling that a notice of appeal, in fact, has been filed and I can amend it.[8]

8 By originating motion dated 6 October 2022, the Director of Public Prosecutions ('DPP') commenced judicial review proceedings seeking orders that, among other things, the order of the County Court be quashed.

9 On 30 June 2022, in the Magistrates' Court at Broadmeadows, Stratos Filonis pleaded to charges relating to stalking, contravention of Family Violence Orders, the commission of an indictable offence while on bail and contravening a conduct condition of bail. Mr Filonis was convicted and sentenced to a term of imprisonment.

10 On 21 July 2022, pursuant to s 255(1) of the Act, Mr Filonis filed a notice of appeal against sentence alone. The reason for appeal was stated to be 'that the punishment is excessive'.[9]

11 By email dated 22 August 2022, Mr Filonis' then solicitor advised that instructions had been received to the effect that her client 'wanted to appeal against conviction as well as sentence'.[10]

12 The matter came on in the County Court at Melbourne on 24 August 2022. Among other things, a County Court judge[11] ordered as follows -

The Court has granted leave for the notice of appeal in this matter to be amended to read 'the appeal is against conviction and sentence.'[12]

13 Again, his Honour's reasoning is apparent from the transcript of hearing, which includes the following exchange -

HIS HONOUR: All right. Well - so you seek leave to amend the notices of appeal to provide that the appeal is against conviction and sentence. Is that correct?

[COUNSEL FOR MR FILONIS]: Yes, your Honour.

HIS HONOUR: All right. Is there any reason why I shouldn't grant that leave, Mr [Prosecutor], in light of section 256 which provides that the appellant is not bound by the plea entered in the Magistrates Court?

MR [PROSECUTOR]: No, your Honour, not that I'm aware of.

HIS HONOUR: Thank you. All right. Leave is granted. The notice of appeal that has been filed with the court will be amended to read - and I'm amending my court copy here now, but it will be amended - there will be an order the notice is amended to read that this appeal is against conviction and sentence.[13]

14 By originating motion dated 6 October 2022, the DPP commenced judicial review proceedings seeking orders that, among other things, the County Court order be quashed.

15 It will be evident that the proceedings were commenced on the same day and that each raises the same point.

16 In respect of the case of Mr Grivas, the DPP's originating motion states the following ground of review -

The learned Judge erred in law, by allowing the First Defendant's application to amend his in-time Notice of Appeal against Sentence, and by amending said Notice, pursuant to s 412 of the Criminal Procedure Act 2009 (Vic), to reflect an Appeal against Conviction and Sentence, in circumstances where leave was required pursuant to s 263 of the Criminal Procedure Act 2009. By reason of s 263 of the Criminal Procedure Act 2009, his Honour had no jurisdiction to otherwise amend the Notice.[14]

17 In respect of the case of Mr Filonis, the stated ground of review is to practically identical effect -

The learned Judge erred in law, by allowing the First Defendant's application to amend his in-time Notice of Appeal against Sentence, and by amending said Notice, to reflect an Appeal against both Conviction and Sentence, in circumstances where leave was required, pursuant to s 263 of the Criminal Procedure Act 2009. By reason of s 263 of the Criminal Procedure Act 2009, his Honour had no jurisdiction to otherwise amend the Notice.[15]

18 Unsurprisingly, the proceedings were ordered to be heard together.

19 Each of the parties retained new counsel for the hearing in this Court.

20 In substance, the DPP pointed to several provisions of Part 6.1 of the Act and submitted that, in each case, the learned judge had erred in ordering that the relevant notice of appeal could be 'amended' to reflect an appeal against 'conviction and sentence'.[16]

21 By contrast, Mr Grivas and Mr Filonis each contended that such amendment was permitted, particularly by a combination of ss 254 and 256 of the Act.

(a) it was confirmed that there was nothing in the Magistrates' Court Criminal Procedure Rules 2019 (Vic) that would permit amendment of notices of appeal of the present kind;[17] and

(b) no party developed any detailed argument by reference to the provisions of any other Act or Rules or, for that matter, any implied or incidental powers of the County Court.[18]

23 It will be evident that the parties' arguments focused upon the proper construction and effect of certain provisions of the Act.

24 The purposes of the Act are stated in s 1. The first of the stated purposes reads as follows -

(a) to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court.

25 Chapter 2 of the Act concerns the commencement of criminal proceedings. Within that chapter, s 5(a) relevantly confirms that a criminal proceeding is commenced by 'filing or signing a charge-sheet in accordance with section 6'.

26 In broad terms, ss 6 to 9 concern the commencement of criminal proceedings in the Magistrates' Court and the form and amendment of charge-sheets. Those provisions provide, relevantly, as follows -

6 Commencement of a criminal proceeding in the Magistrates' Court

(1) A criminal proceeding is commenced -

(a) by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; or

...

(3) A charge-sheet must -

(a) be in writing; and

(b) be signed by the informant personally; and

(c) comply with Schedule 1.

(1) A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where -

(a) otherwise provided by or under any other Act; or

(b) the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.

(2) A proceeding for an indictable offence -

(a) may be commenced at any time, except where otherwise provided by or under this or any other Act; and

(b) may be heard and determined summarily even though the proceeding may have been commenced more than 12 months after the date on which the offence is alleged to have been committed.

(1) The Magistrates' Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.

(2) If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.

(3) An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.

(4) If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if -

(a) the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and

(b) the amendment does not amount to the commencement of a proceeding for a new offence; and

(c) the amendment will not cause injustice to the accused.

(1) A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1.

(2) A charge on a charge-sheet is not invalid by reason only of -

(a) omitting to state the time at which the offence was committed unless time is an essential element of the offence; or

(b) incorrectly stating the time at which the offence was committed; or

(c) stating the offence to have been committed on an impossible day or on a day that never happened.

27 Chapter 6 of the Act is entitled 'Appeals and cases stated'. Part 6.1 is entitled 'Appeal from Magistrates' Court to County Court'.

28 Division 1 of Part 6.1 concerns appeals by offenders. That Division contains ss 254 to 256, which provide, relevantly, as follows -

(1) Subject to subsection (2), a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against -

(a) the conviction and sentence imposed by the court; or

(b) sentence alone.

...

(1) An appeal under section 254 is commenced by filing a notice of appeal with a registrar of the Magistrates' Court at any venue of the Magistrates' Court within 28 days after the day on which the sentence of the Magistrates' Court is imposed.

(2) A copy of the notice of appeal must be served on the respondent in accordance with section 392 within 7 days after the day on which the notice is filed.

(3) A notice of appeal must -

(a) state whether the appeal is against conviction and sentence, or sentence alone; and

(b) be in the form prescribed by the rules of the County Court or the Supreme Court, as the case requires.

(4) A notice of appeal must include a statement in the form prescribed by the rules of the County Court or the Supreme Court, as the case requires and signed by the appellant to the effect that the appellant is aware that on the appeal the court may impose a sentence more severe than that sought to be appealed.

(5) A notice of appeal must also include an undertaking signed by the appellant in the manner prescribed by the rules of the County Court or the Supreme Court, as the case requires -

(a) subject to paragraph (ab), to appear at the County Court to proceed with the appeal at a place and on a day fixed or to be fixed by the registrar of the County Court and to appear at the County Court for the duration of the appeal; and

(ab) in the case of an appeal referred to in section 254(2), to appear at the Supreme Court to proceed with the appeal at a place and on a day fixed or to be fixed by the Prothonotary of the Supreme Court and to appear at the Supreme Court for the duration of the appeal; and

(b) to give written notice without delay to the registrar of the County Court or the Prothonotary of the Supreme Court, as the case requires of any change of address of the appellant from that appearing in the notice of appeal.

(6) Before accepting a notice of appeal, a registrar of the Magistrates' Court must -

(a) give to the person seeking to file the notice of appeal a notice in the form prescribed by the rules of the County Court or the Supreme Court, as the case requires to the effect that on the appeal the court may impose a sentence more severe than that sought to be appealed against; and

(b) if the person seeking to file the notice of appeal is not the proposed appellant, be satisfied that the proposed appellant has signed the statement required to be included in the notice of appeal by subsection (4).

(7) A notice of appeal filed under this section must be transmitted to the County Court or the Supreme Court, as the case requires.

(1) An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates' Court.

(2) On the hearing of an appeal under section 254, the County Court or the Supreme Court, as the case requires -

(a) must set aside the sentence of the Magistrates' Court; and

(b) may impose any sentence which the court considers appropriate and which the Magistrates' Court imposed or could have imposed; and

(c) may exercise any power which the Magistrates' Court exercised or could have exercised.

(3) On the hearing of an appeal under section 254, the court must warn the appellant, as early as possible during the hearing, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Magistrates' Court.

(4) The court may backdate a sentence imposed under subsection (2) to a date not earlier than the date of the sentence of the Magistrates' Court that was set aside on the appeal.

(5) A sentence imposed under subsection (2) is for all purposes to be regarded as a sentence of the County Court or the Supreme Court, as the case requires.

29 Division 2 of Part 6.1 of the Act (ss 257-259) concerns appeals by the DPP against sentence. Section 257 concerns the DPP's 'right of appeal', s 258 states how such an appeal may be commenced (namely, by notice of appeal within 28 days) and s 259 addresses the determination of such an appeal by the County Court.

30 Division 3 of Part 6.1 (ss 260-262) concerns appeals by the DPP in respect of the failure of a person to fulfil an undertaking given to assist law enforcement authorities after sentencing.

31 Division 4 of Part 6.1 is entitled 'Procedure'. Within that Division, s 263 concerns giving notice of appeal after the period of 28 days referred to in ss 255(1) or 258 and provides as follows -

263 Late notice of appeal deemed to be application for leave to appeal

(1) A notice of appeal filed after the end of the period referred to in section 255(1) or 258 is deemed to be an application for leave to appeal on the grounds stated in the notice.

(2) The County Court or the Supreme Court, as the case requires, may grant leave to appeal under subsection (1) and the appellant may proceed with the appeal if -

(a) the court considers that the failure to file a notice of appeal within the period referred to in section 255(1) or 258 was due to exceptional circumstances; and

(b) the court is satisfied that the respondent's case would not be materially prejudiced because of the delay.

(3) If the court does not grant leave to appeal under subsection (2), the court must strike out the appeal.

(4) If -

(a) the County Court or the Supreme Court, as the case requires, strikes out an appeal under subsection (3); and

(b) the appellant had been sentenced to a term of imprisonment or detention by the Magistrates' Court -

the registrar of the County Court, Prothonotary of the Supreme Court or the Registrar of Criminal Appeals, as the case requires, may issue, in accordance with the Magistrates' Court Act 1989, a warrant to imprison the appellant and may recall and cancel that warrant.

(5) If an appeal is struck out under subsection (3) -

(a) the sentence of the Magistrates' Court is reinstated and may be enforced as if an appeal had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and

(b) the registrar of the County Court, Prothonotary of the Supreme Court or the Registrar of Criminal Appeals, as the case requires, must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and

(c) the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal.

32 Other sections within Division 4 address matters such as stay of sentence upon filing a notice of appeal (s 264), bail pending appeal (s 265), the failure of an appellant (other than the DPP) to appear at the hearing of the appeal (s 267) and the failure of a respondent to appear at the hearing of an appeal brought by the DPP (s 268).

33 As the DPP highlighted in argument, s 266 addresses abandonment of an appeal and states, relevantly, as follows -

(1) Subject to subsections (2) and (3), an appeal to the County Court or the Supreme Court, as the case requires, may be abandoned by filing a notice of abandonment of appeal, in the form prescribed by the rules of the applicable court, with the applicable court.

(2) If an appellant appeals against both conviction and sentence but does not pursue the appeal against conviction, the appellant must give written notice to the court and the respondent that the appeal against conviction is abandoned.

...

34 For completeness, I should add that Part 8.5 of the Act is entitled 'Miscellaneous'. Within that Part, s 412 provides as follows -

412 Power to amend when there is a defect or error

For the purpose of correcting any defect or error in substance or in form, a court may amend any summons, warrant, plea, judgment or order.

35 In written submissions, Mr Filonis sought to rely upon s 412; however, that submission was not pressed orally. Mr Grivas also seemed ultimately to place no reliance upon that provision.[19]

36 As I have noted, the substance of the DPP's contentions were that -

(a) s 254 of the Act provides for two rights to appeal - 'conviction and sentence' and 'sentence alone';

(b) structurally, s 256 reinforces the conclusion that there are two different rights of appeal;

(c) no provision in the Act permits 'amendment' of a notice of appeal to change the basis of appeal from 'sentence alone' to 'conviction and sentence';

(d) to allow a notice of appeal in respect of 'sentence alone' simply to be amended to read 'conviction and sentence' is to change the nature of the appeal; and

(e) in the present instance, that would be to allow the institution of a new appeal out of time, without complying with the requirements of s 263 of the Act.

37 By contrast, Mr Grivas and Mr Filonis submitted that -

(a) s 254 simply creates a 'right to appeal';

(b) whether such an appeal is against 'conviction and sentence' or 'sentence alone' is essentially no more than a matter of particulars;

(c) by s 256 (particularly, s 256(2)(c)), the County Court is placed in 'complete control' of such an appeal;[20]

(d) accordingly, once an appeal is commenced within time the Court may grant leave to permit a notice of appeal in respect of 'sentence alone' to be 'amended' in order that the appeal may proceed against 'conviction and sentence'.

38 The Act includes detailed provisions directed to the criminal jurisdiction of various courts, including the Magistrates' Court and County Court. I have already referred to aspects of those provisions.

39 In that regard, Chapter 2 of the Act addresses the commencement of a criminal proceeding and, in particular, s 6, within Part 2.2, addresses the commencement of a criminal proceeding in the Magistrates' Court.

40 In that connection, s 6(1) identifies the step of filing a charge-sheet as vesting the Magistrates' Court with jurisdiction to hear a criminal proceeding. It is that step which commences such a proceeding.[21]

41 Section 6(3) imposes requirements of form, including that a charge-sheet must comply with Schedule 1. Schedule 1 sets out requirements for both charges and charge-sheets. Schedule 1 also picks up the historical difference between the essential elements of the offence (contained within a charge) and 'particulars'.[22]

42 In that context, s 8, which is also within Part 2.2, confers upon the Magistrates' Court a power to amend a charge-sheet. There are, however, constraints upon the exercise of that power. In that regard -

(a) a charge-sheet may be amended 'in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused';[23]

(b) an amendment to a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of any period within which a proceeding for that offence may be commenced;[24] and

(c) a charge in a charge-sheet to which a limitation period applies may only be amended after expiry of that period in certain identified circumstances.[25]

43 Nonetheless, if a charge-sheet is amended by order, it is to be treated as having been filed in that amended form for the purposes of the hearing and all proceedings connected with the hearing.[26]

44 I should add that it is apparent that s 8 is in terms different to the statutory power of amendment that preceded it; although parts of s 8 pick up the kinds of limitations that courts had imposed upon the preceding statutory power.[27]

45 In this context, s 412 of the Act also stands as a seemingly general power by which a court may make an order giving leave to correct 'any defect in substance or in form' in 'any summons, warrant, plea, judgment or order'.[28]

46 It may be noted that the ambit of s 412 is confined by its concluding words. Ultimately, as I have noted, neither Mr Grivas nor Mr Filonis contended that s 412 could presently have empowered the County Court to amend the subject notices of appeal.

47 That brings me to Part 6.1 of the Act, concerning appeals from the Magistrates' Court to the County Court. In that regard, I have earlier extracted the relevant terms of ss 254, 255 and 256, which concern appeals by offenders.

48 Section 254 creates a right of appeal to the County Court. The form of that provision is both delineated and quite specific: appeal is against 'conviction and sentence' or 'sentence alone'. There is no provision for appeal against conviction alone.

49 In a sense, the first stated alternative might be said to include the second; in that both involve appeal against sentence. That said, it was essentially common ground that an appeal against conviction and sentence involves a hearing of a 'different sort' to a hearing of an appeal against sentence alone.[29] In the circumstances, it is unsurprising that the legislature would delineate distinct and alternative rights of appeal.

50 I have noted that Mr Grivas and Mr Filonis submitted that s 254 creates, in effect, a single right of appeal in respect of which 'conviction and sentence' or 'sentence alone' are to be read as no more than 'particulars'.[30] To some extent that submission called upon features of ss 255 and 256.

51 However, in my view, the delineated form of s 254 strongly tends against such a proposition: the right of appeal is specifically stated to be 'against' only 'conviction and sentence' or 'sentence alone'.

52 Further, that two specific and alternative rights of appeal were intended to be created seems to me also to be plain when the statutory history and extrinsic materials are considered.

53 The preceding statutory provision stated relevantly as follows -

A person may appeal to the County Court against any sentencing order made against that person by the Court in a criminal proceeding conducted in accordance with Schedule 2.[31]

54 That provision more clearly conferred a single right of appeal, in respect of which the notice of appeal was required to state 'the general grounds of appeal'.[32]

55 In that context, the extrinsic materials associated with the enactment of the Act confirm that the legislature specifically intended to alter the form of the relevant provision.

56 In that regard, the Legislative Guide published simultaneously with the coming into force of the Act,[33] refers to the 'sensible' distinction between 'conviction and sentence' and 'sentence alone' and states that the distinction is achieved in s 254 of the Act by 'dividing the appeal right'.[34] Shortly thereafter, it is stated that s 254 'now expressly distinguishes between such appeals'.[35]

57 In my view, further statutory features suggest that two distinct and alternative bases of appeal are created. Among other things -

(a) s 255(1) is directed to commencement, 'by filing a notice of appeal ... within 28 days after the day on which the sentence of the Magistrates' Court is imposed';

(b) s 255(3)(a) requires that the notice of appeal state whether the appeal is 'against conviction and sentence, or sentence alone' [emphasis added];

(c) s 255(4) requires that the notice of appeal include a signed statement that the appellant is aware that on the appeal the court may impose a more severe sentence than the sentence under appeal; and

(d) s 255(5) requires that the notice of appeal include a signed undertaking to proceed with the appeal at the place and day fixed and 'to appear at the County Court for the duration of the appeal'.

58 The provisions to which I have referred underline both the expedition and deliberation required when determining whether to appeal, and, if so, on what distinct basis. In that regard, I have noted that s 255(3)(a) requires that the basis be stated in the notice of appeal.

59 Section 255, of course, identifies that the appeal is 'commenced' by filing a notice of appeal. Like s 6(1), which vests jurisdiction in Magistrates' Court to hear and determine a criminal proceeding upon the filing of a charge-sheet;[36] s 255(1) vests jurisdiction in the County Court to hear and determine an appeal upon the filing of a timely notice of appeal. As I have indicated, that notice of appeal must identify which of the alternative bases of appeal is relied upon.

60 Notwithstanding the similarity in function as between s 6(1), in Part 2.2, and s 255(1), in Part 6.1 -

(a) as I have noted, s 8, in Part 2.2, contains very specific provisions directed to the circumstances in which a charge-sheet may be amended and, indeed, the effect of that amendment if permitted; and

(b) by contrast, Part 6.1 contains no provision specifically directed to circumstances in which a notice of appeal may be amended in order to alter the basis for the appeal.

(a) Mr Grivas and Mr Filonis sought to rely upon s 256 (and s 254) as empowering the County Court to amend a notice of appeal to change the stated basis for an appeal; and

(b) by contrast, the DPP submitted that the structure of s 256 supported her construction of the relevant provisions.

62 I have earlier extracted the relevant parts of s 256, which is directed to the hearing and determination of an appeal by an 'offender'. Such an appeal is there variously referred to as 'an appeal under section 254'; however, that is no more than to refer broadly to the source of the particular right of appeal relied upon in an appeal commenced by notice of appeal filed pursuant to s 255.

63 In my view, the structure of s 256 is presently neutral. I do not accept that certain provisions of the section should be taken specifically to be directed to 'conviction and sentence' appeals and others should be taken specifically to be directed to 'sentence alone' appeals. That is not the form of the section.

64 In any event, it is not surprising that the section would not seek to undertake any such rigid allocation when one identified kind of appeal (conviction and sentence) effectively covers the whole of the ground of the other identified kind of appeal (sentence alone). In my view, the sub-paragraphs of s 256 are more apt to be read as provisions to be resorted to in the determination of an appeal of either kind, where applicable.

65 That said, I cannot accept the submission of Mr Grivas and Mr Filonis that, via ss 254 and 256 (particularly, s 256(2)(c)), the County Court is given 'complete control' of an appeal such that it is empowered to 'amend' a notice of appeal with the effect of changing the jurisdictional basis for the appeal.

66 In that regard, it does not seem to me to follow from provisions directed to matters such as the right of appeal, the mode of hearing of an appeal, the fact that an appellant is not bound by his or her plea in the Magistrates' Court and the setting aside of the Magistrates' Court sentence,[37] that the County Court should have power to amend the notice of appeal with the effect of changing the jurisdictional basis for the appeal.

67 Indeed, in my view, the fact that the Act elsewhere provides specifically and in very limited terms for amendment in similar circumstances suggests that no such power should be inferred to arise from provisions directed to other topics.

68 However, Mr Grivas and Mr Filonis placed reliance upon s 256(2)(c). I have earlier extracted that section; however, it is presently convenient to re-state its terms -

[the County Court] may exercise any power which the Magistrates' Court exercised or could have exercised.

69 In that general connection, senior counsel for Mr Grivas submitted -

... a Magistrate would be able to, for example, amend the charge, adjourn the matter, dismiss a charge, extend time frames as they exist. ... I accept that ... it's not exactly like for like because clearly, the Magistrates' Court is not exercising appellate jurisdiction whereas the County Court is.

But I would submit that it follows that if the County Court is given complete control over the criminal proceedings that are now before it, that that must necessarily include a power to amend the particulars on a document where its power's been properly enlivened ... .[38]

70 The reference of senior counsel to 'complete control' links to the following reasoning of Maxwell P, Beach and Kaye JJA in Quick v Creanor ('Quick'), in respect of s 256(2)(c) -

... that is a provision of very broad scope, intended to place the County Court in the same position as the Magistrates' Court and with complete control over the criminal proceedings before it. It follows that, on an appeal from the Magistrates' Court, the County Court can exercise the power of reinstatement just as the Magistrates' Court could have done.[39]

[Emphasis added, footnote omitted]

71 It is plain from that passage, and the reasoning in Quick more generally, that -

(a) Quick concerned whether the County Court could exercise a power that the Magistrates' Court had enjoyed - namely, the power of reinstatement of a charge merely struck out;

(b) that question was directly answered by s 256(2)(c), as the Magistrates' Court 'exercised or could have exercised' that power; and

(c) the expression 'complete control' was therefore no more than a summary means of expressing the effect of s 256(2)(c) - it was not intended to, and does not, have an effect greater than the statutory provision.

72 I should add that it is also plain enough that Quick did not address the present issue and that the power to amend a notice of appeal is not a power that the Magistrates' Court 'exercised or could have exercised' (as, at that time, there was no notice of appeal).

73 Further, to the extent that the Magistrates' Court had enjoyed power to 'amend the charge', that was pursuant to the very specific terms stated in s 8 of the Act and can say nothing about any purported 'amendment' of a subsequent notice of appeal to the County Court.

74 It follows, in my view, that neither s 256(2)(c) nor Quick can stand as a source of power by which the identified jurisdictional basis for an appeal commenced under s 255(1) may be altered.

75 Division 2 of Part 6.1 concerns appeals by the DPP against sentence and Division 3 of Part 6.1 concerns appeals by the DPP in respect of a failure to fulfil an undertaking. Other than to note that the rights concerned are conferred in limited terms and that the structure of the provisions is similar to those appearing in Division 1, nothing in those Divisions appears to displace the observations made above.

76 Division 4 of Part 6.1 of the Act, however, is entitled 'Procedure'. That Part includes detailed provisions directed to circumstances that might readily be thought to be capable of arising in circumstances in which an appeal has or has not been commenced, including -

(a) late notice of appeal (s 263); and

(b) abandonment of an appeal (s 266).

(a) it is evident that an appeal may be abandoned by filing a notice of abandonment, including if the appellant appeals against conviction and sentence 'but does not pursue the appeal against conviction';

(b) the provisions relating to late notice of appeal tend to emphasise the required expedition and deliberation of the appellant, to which I have earlier referred;

(c) those provisions also create an evident pathway by which an appellant may seek to appeal out of time, albeit via 'application for leave to appeal on the grounds stated in the notice' and upon satisfaction of the court that the failure to file within time was 'due to exceptional circumstances' and the respondent's case 'would not be materially prejudiced because of the delay';[40] and

(d) it is, again, notable that there is no applicable amendment provision of the kind appearing much earlier in the Act (in s 8) or, for that matter, much later in the Act (in s 412).

(a) the right of appeal stated in Division 1 of Part 6.1 is in specific and delineated terms - against 'conviction and sentence' or 'sentence alone' (s 254);

(b) the jurisdiction of the County Court to hear and determine an appeal is invoked by filing a notice of appeal 'within 28 days' (s 255(1));

(c) that notice of appeal 'must' state whether the appeal is against 'conviction and sentence' or 'sentence alone' (s 255(3)(a));

(d) it follows that the County Court is vested with jurisdiction to hear and determine the specific appeal the subject of the notice of appeal (subject to s 266);

(e) the County Court is given the powers of the Magistrates' Court (s 256(2)(c)), but that could not include power to amend the notice of appeal so as to alter the jurisdictional basis for an appeal to the County Court - among other things, the Magistrates' Court did not have power to amend a notice of appeal to the County Court because no such document could be or was before it;

(f) significantly, Part 2.2 of the Act specifically addresses the circumstances in which the Magistrates' Court may order that a charge-sheet be amended, but no similar provision appears in Part 6.1 or anywhere else in the Act in respect of a notice of appeal to the County Court;

(g) in that regard, the amendment provision appearing later in the Act is in confined terms that do not presently apply (s 412);

(h) that said, alteration of the jurisdictional basis of an appeal to the County Court so as to, in effect, convert an appeal against 'conviction and sentence' into an appeal against 'sentence alone', is specifically addressed in the provisions relating to abandonment (s 266(2));

(i) Part 6.1 also includes detailed provisions relating to late notice of appeal (s 263), and therefore provides a pathway by which a late raised application for leave to appeal against 'conviction and sentence' may be sought to be pursued (as well as an appeal within time against 'sentence alone' abandoned (s 266));

(j) to allow an appellant, in substance, to introduce an appeal against 'conviction and sentence' out of time, but without satisfying the requirements applying to a late notice of appeal, does present as something of a circumvention of the evident scheme of the Act;[41] and

(k) in that regard, to describe such a step as mere 'amendment' is not accurately to characterise what is occurring when a notice of appeal is sought to be altered - absent any provision permitting that to occur - so as to allow the introduction, out of time, of an appeal against conviction as well as sentence without the demonstration of, among other things, 'exceptional circumstances'.

79 For these reasons, I must conclude, respectfully, that the learned County Court judges erred in granting leave to allow such 'amendments'.

80 The relevant orders must be quashed and each of the proceedings remitted to the County Court to be determined according to law.

81 I will hear the parties concerning the form of final orders, including any issues of costs.

[1] Court Book - Grivas ('CBG') 34-35.

[9] Court Book - Filonis ('CBF') 35-36.

[11] The County Court judge hearing the matter of Filonis was different to the County Court judge who had, a few days earlier, heard the matter of Grivas.

[16] Cf., Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531, [66] and [71]-[77].

[18] Mr Filonis' written outline of argument referred to 'the Supreme Court's inherent power to amend orders and judgments' (CBF110); however, that formed part of an argument relating to s 412 of the Criminal Procedure Act 2009 (Vic) that was not pressed orally: T32. In any event, reference was made to authorities concerning matters such as the 'slip rule': Cf., CMG v The Queen (2013) 46 VR 748, [130] ('CMG'); to which I should perhaps add the power to strike out by way of controlling Court lists and to reinstate matters struck out: see, DPP v Moore [2003] VSCA 90; (2003) 6 VR 430, [20]-[21], DPP v Hogg; DPP v Cyberman [2006] VSC 257, [42] and Quick v Creanor [2015] VSCA 273; (2015) 49 VR 479, [15]-[16] ('Quick'). Such matters are obviously quite different in quality to the step presently taken. Any implied powers of the County Court are incidental and must concern actions taken within jurisdiction: Cf., Lawstrane Pty Ltd v Ruttmar [2013] VSCA 57; (2013) 37 VR 320, [11]. It must be doubtful that it could be appropriate to imply powers that are not congruent with the underlying statutory scheme of provisions.

[20] Quick (n 18) [18]. See also, Keech v County Court of Victoria (2017) 55 VR 32, [81].

[21] Fox v Director of Public Prosecutions (2022) 66 VR 223, [6]-[7] ('Fox').

[22] See also, s 32.

[23] Section 8(1).

[24] Section 8(3).

[25] Section 8(4).

[26] Section 8(2).

[27] Magistrates' Court Act 1989 (Vic), s 50. Cf., Fox (n 21) [18]-[20].

[28] That said, I note the consideration of s 412 in DPP v Edwards (2014) 44 VR 114, [238]-[239], CMG (n 18) [20]-[28], [118] and [124]-[130] and Ha v R [2014] VSCA 335; (2014) 44 VR 319, [95].

[31] Magistrates' Court Act 1989 (Vic) (version no. 149B) s 83(1). As to the history of de novo appeals from the Magistrates' Court to the County Court, see the detailed survey in the Victorian Parliament Law Reform Committee report entitled De Novo Appeals to the County Court, October 2006.

[32] Magistrates' Court Act 1989 (Vic) (version no. 149B) Schedule 6, cl 1(4). See also, County Court Miscellaneous Rules 1999 (Vic), Form 2-2A.

[33] Stark v R [2013] VSCA 34; (2013) 45 VR 1, [36]-[38]. See also, DPP v Horan [2022] VSC 692, [33].

[34] Criminal Procedure Act 2009, Legislative Guide, 240 ('Legislative Guide').

[35] Ibid 241. See also, Legislative Guide (n 34) 247 and Explanatory Memorandum, Criminal Procedure Bill 2008 (Vic) 92-93.

[37] Sections 256(1) and 256(2)(a)-(b).

[40] In that regard, see generally Shire of Carnarvon v Klein Corporation Pty Ltd [2008] VSC 24, Kalb v Magistrates' Court of Victoria [2014] VSC 137 and Samios v DPP [2022] VSCA 108.

[41] Cf., in a slightly different context_, Saraswati v R_ [1991] HCA 21; (1991) 172 CLR 1, 23-24.