Supreme Court Act 1986, s 10(1)(c); Criminal Procedure Act 2009, s 283(2); Commonwealth Constitution, Ch III.

James v English [2023] VSCA 46, considered; Moorabbin Transit Pty Ltd v Bekhit [2016] VSCA 70; (2016) 50 VR 563, applied; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; Vunilagi v The Queen (2023) ALJR 627; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, referred to.

1. Mr Steven Trajkovski was convicted in the Magistrates' Court of the offences of driving in a dangerous manner and exceeding the speed limit by 45 km per hour or more. He was sentenced to a $1,000 fine and his driver licence was suspended for 12 months. He appealed to the County Court against his conviction and sentence. That Court found the charges proven and, in substance, imposed the same sentence. Neither the Magistrates' Court nor the County Court imposed any sentence of imprisonment on Mr Trajkovski.
2. Mr Trajkovski has filed an application for leave to appeal in this Court against the sentence imposed on him by the County Court. The application purported to be brought pursuant to s 283 of the Criminal Procedure Act 2009. It was accompanied by a letter to the Registrar setting out the basis for the application.
3. The Registry refused to accept the documents for filing. The following reason was provided in RedCrest (this Court's electronic filing system):

The Court of Appeal does not have jurisdiction to consider any appeal against your conviction or sentence. The Form 6-2C you submitted relates to appeals under s 283 of the Criminal Procedure Act 2009. That section only applies where the Magistrates' Court did not order a person to be imprisoned, then, on an appeal to the County Court, the County Court sentenced that person to a term of imprisonment. As you were not sentenced to a term of imprisonment by the County Court, s 283 does not apply to you. There is no other section under which you can appeal to the Court of Appeal. Accordingly, the Registrar of the Court of Appeal refuses to seal your documents and rejects them.

1. The next day, Mr Trajkovski re-submitted the documents for filing in RedCrest together with two new documents: one with the file name 'registrar's duty' and one that was an extract from the Human Rights Act 2004 (ACT).
2. In response to Mr Trajkovski's second attempt to file his documents, the Registry emailed him again informing him of the basis on which the documents were rejected for filing and referring him to two decisions of this Court that confirmed the Court's lack of jurisdiction: James v English[1] and Miglani v Merifield.[2]
3. Mr Trajkovski then emailed the Registry asserting that the Court does have jurisdiction and has a duty to provide a remedy where there has been a miscarriage of justice.
4. Mr Trajkovski's 'registrar's duty' document and his email included the assertion that the Criminal Procedure Act contravenes the Commonwealth Constitution, including s 109, the separation of powers and the Kable principle.[3]
5. Mr Trajkovski's documents and email were treated as an application to have this Court exercise its power under r 1A.04(4) of the Supreme Court (Criminal Procedure) Rules 2017 to direct the Registrar of Criminal Appeals to accept and seal the applicant's documents.
6. For the reasons that follow, this application must be refused.

1. The jurisdiction of the Court of Appeal is set out in s 10 of the Supreme Court Act 1986. Section 10(1)(c) provides that this Court has jurisdiction to hear and determine 'all appeals from the County Court constituted by a Judge of that Court'. That includes jurisdiction in criminal appeals. However, it does not follow that this Court has jurisdiction to hear Mr Trajkovski's application. The operation and effect of s 10(1)(c) was explained by this Court in Moorabbin Transit Pty Ltd v Bekhit as follows:

This Court's jurisdiction to hear appeals, by reason of s 10(1)(c) of the Supreme Court Act, 'is limited by reference to the range of decisions in respect of which a party has a right to appeal'. ...

... To determine if a party has a right to appeal it is necessary to identify whether the Supreme Court Act, or any other Act ... confers that right to appeal, or whether the Rules provide for a right of appeal. The scope of that right, that is, the range of decisions from which an appeal can be brought, is to be determined by reference to the particular Act which confers the right.[4]

1. In short, s 10(1)(c) does not, of itself, confer any right of appeal on Mr Trajkovski. Rather, it is necessary to locate a right to appeal elsewhere. And it is only if a person has a right to appeal that s 10(1)(c) operates to confer jurisdiction on this Court to hear the appeal (whether in a criminal or a civil proceeding).[5]
2. A person's right to appeal in relation to a criminal proceeding is to be found in the Criminal Procedure Act. Relevantly for present purposes, that Act provides two avenues of appeal to 'a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3':[6]

(a) first, as occurred here, the person may appeal to the County Court under s 254; or

(b) the person may appeal to the Supreme Court on a question of law under s 272.

1. 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.[7] The exception is found in s 283(2), which provides for an appeal against sentence as follows:

(2) A person sentenced to a term of imprisonment by the County Court or the Supreme Court, as the case requires under section 256, 259 or 262 may appeal to the Court of Appeal against the sentence if -

(a) in the proceeding that is the subject of the appeal, the Magistrates' Court had not ordered that the person be imprisoned; and

(b) the Court of Appeal gives the person leave to appeal.

1. That is, a person sentenced to imprisonment on appeal to the County Court may appeal (by leave) to this Court if, in the proceeding that is the subject of the appeal, the Magistrates' Court had not ordered that the person be imprisoned.

Application of the statutory regime to Mr Trajkovski's circumstances

1. Mr Trajkovksi's application for leave to appeal purported to rely upon s 283 of the Criminal Procedure Act. However it is plain that he does not fall within that section because, as noted earlier, he was not sentenced to a term of imprisonment by the County Court. There is no other provision in the Criminal Procedure Act, or in any other statute, that provides a relevant right to appeal. There is thus no statutory right to appeal available to him and the Court lacks jurisdiction to hear an appeal in his case.

1. As noted above, in his correspondence with the Registry Mr Trajkovksi raised various constitutional arguments concerning the validity of the Criminal Procedure Act. In his 'registrar's duty' document, which accompanied Mr Trajkovski's re-submitted application documents, he said:

I suggest you take what I have said to the most learned and honorable justice you have and ask them, about the separation of power and the Kable principle and how parliament pass rubbish acts that all learned Judge's would not even consider to be something they would uphold.

I do not accept the attempt to contravene the separation of power doctrine, with s283 of the CPA Act having any merit whatsoever, under the circumstances.

1. In his email to the Registry, Mr Trajkovski said this:

I has already explained, the CPA is inconsistent with the high courts position on these matters, the kable case reinforced s109 of the constitution, no court can deliver outcomes that are miscarriages of justice and against the rule of law, nobody gets to cherry pick the conditions which it applies to, you are trying to explain to me that it only applies if magistrates court sentence was not a prison sentence and an appeal to the county court resulted in a prison sentence.

1. Later, he elaborated on the Kable principle as follows:

The Kable principle refers to the High Court of Australia's decision in Kable v Director of Public Prosecutions (NSW) (1996), where it was established that state courts, which exercise judicial power under Chapter III of the Australian Constitution, cannot be enlisted to implement legislation that is incompatible with their role as independent and impartial courts. This principle protects the integrity of state courts as part of the integrated federal judicial system.

A duty to provide a remedy in the context of an obvious miscarriage of justice and refer to the Kable principle, it implies that state courts cannot avoid their duty to deliver justice by relying on state legislation (like the Victorian Civil Procedure Act or similar statutes) in a way that undermines the proper function of the judiciary.

If a state court were to attempt to use procedural legislation to circumvent its duty to correct a miscarriage of justice, it would violate the Kable principle by undermining the court's institutional integrity and its obligation to act as an independent and impartial forum for resolving disputes. This could be described as a form of judicial abdication of constitutional duty or judicial evasion, potentially leading to constitutional invalidity if it compromises the court's integrity under the Kable principle.

In this scenario, the court would not only fail in its obligation to provide a remedy but also potentially violate the constitutional framework designed to ensure judicial independence and fairness across both state and federal levels.

1. We note that these arguments were not raised by way of any formal application. Nor were notices issued pursuant to s 78B of the Judiciary Act 1903 (Cth). Nonetheless, it is appropriate to observe that Mr Trajkovski's constitutional arguments are entirely lacking in merit.
2. In relation to s 109 of the Constitution, Mr Trajkovski has not identified any law with which the Criminal Procedure Act is said to be inconsistent.
3. In relation to the separation of powers, there is, of course, no strict separation of powers applicable to the States.[8] Furthermore, Mr Trajkovski has not identified how it is that the Criminal Procedure Act is inconsistent with the separation of powers.
4. In relation to the argument based on the Kable principle, which was somewhat more developed, the argument rests on the proposition that State courts - including this Court - have a duty to 'deliver justice' and that they cannot avoid that duty by relying upon 'procedural legislation' such as the Criminal Procedure Act. That, Mr Trajkovski asserts, would 'undermine the court's institutional integrity and its obligation to act as an independent and impartial forum for resolving disputes'. We do not accept that submission. It gains no support from authority, whether in the High Court or elsewhere. There is nothing in the Criminal Procedure Act that requires this Court to act in a manner that could substantially impair its institutional integrity, or its independence and impartiality, or that otherwise contravenes the Kable principle.
5. Furthermore, Mr Trajkovski's submissions are inconsistent with the High Court's statement in Dwyer v Calco Timbers Pty Ltd that 'an "appeal" is ... always a creature of statute'.[9] That is, a person has no right of appeal, and a court has no jurisdiction to hear an appeal, in the absence of statutory conferral of such a right and such a jurisdiction. If the relevant legislation confers no right of appeal in a particular case, then the Court lacks jurisdiction to hear such an appeal. The application of the relevant statutory provisions in this case results in this Court lacking jurisdiction to hear and determine Mr Trajkovksi's purported appeal, but that does not undermine the Court's institutional integrity. Nor does it interfere with the Court's obligation to act as an independent and impartial tribunal. The legislature's choice to limit a person's right of appeal in the manner selected was plainly open to it.
6. We note, finally, that if Mr Trajkovski was correct in his argument that the Criminal Procedure Act contravened the Kable principle, it is entirely unclear how this would result in him having a right of appeal to this Court, or in this Court having jurisdiction to hear his appeal, given that an appeal is always a creature of statute, and given that there is no other statute that confers a right of appeal or jurisdiction to hear an appeal in the present circumstances.

1. In our opinion the emails from the Registry correctly set out the applicable law and its consequences for Mr Trajkovski. The Registry was correct to conclude that this Court does not have jurisdiction to entertain his proposed appeal. The appeal is, therefore, incompetent. In these circumstances it would be futile to seal the applicant's documents and accept them for filing.
2. As a consequence, we refuse the application to give a direction under r 1A.04(4).

[1] [2023] VSCA 46.

[2] Unreported, Court of Appeal, Boyce JA, 14 May 2024.

[3] See Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24. The 'Kable principle' was explained by Kiefel CJ, Gleeson and Jagot JJ (with whom Gageler J agreed) in Vunilagi v The Queen (2023) ALJR 627, 636-7 [12]; [2023] HCA 24 as follows:

• because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid.

[4] [2016] VSCA 70; (2016) 50 VR 563, 572 [36]-[37] (Tate, Ferguson and McLeish JJA); [2016] VSCA 70 ('Moorabbin'). See also O'Bryan v Lindholm [2024] VSCA 130, [57]-[66] (Kennedy, Walker and Macaulay JJA) ('O'Bryan'); Re Thorpe [2024] VSCA 172, [8]-[9] (McLeish JA).

[5] We note that in James v English [2023] VSCA 46 this Court said the following about s 10(1)(c) at [4]:

• 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.

However, s 10(1)(c) is not, in terms, directed only to civil proceedings or only to appeals under s 74 of the County Court Act. Nor is there any textual basis for reading s 10(1)(c) down in such a manner. Rather, consistently with this Court's decision in Moorabbin and O'Bryan, we consider that s 10(1)(c) confers jurisdiction on this Court where a person has a right to appeal. In the criminal context, that question is governed by the relevant provisions of the Criminal Procedure Act. These remarks are not intended to suggest that the result in James v English was incorrect; to the contrary, the result was plainly correct.

[6] Part 3.3 is concerned with summary hearings of criminal charges.

[7] We note that a person may appeal against a sentence imposed by the County Court exercising original jurisdiction, pursuant to ss 278-282 of the Criminal Procedure Act. But those sections do not apply when the County Court has exercised its appellate jurisdiction in relation to a sentence imposed by the Magistrates' Court.

[8] Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 573 [69] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, Heydon J agreeing at 585 [113]); [2010] HCA 1.

[9] (2008) 234 CLR 124, 128 [2] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); [2008] HCA 13.