Section 25(4) - Right to Review of Conviction and Sentence

Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.

Sub-section (4) of s. 25 of the Charter protects the right to have a conviction and sentence for a criminal offence reviewed by a higher court. This is a widely accepted civil and political right and reflects article 14(5) of the ICCPR.


When does section 25(4) apply?


Sub-section (4) of s. 25 applies where a person has been convicted of committing a criminal offence. This includes where the accused has been found to have committed an offence but a conviction has not been recorded.


What does it mean?


Sub-section (4) of s. 25 recognises that a person convicted of a criminal offence has the right to appeal against the conviction and the sentence imposed. The right applies to all offences, not simply the most serious.274


An appeal carries with it the same protections that are afforded the accused at trial, including, for example, the right to adequate time and facilities, and access to an interpreter, and the right to have the appeal or review heard without delay.275 The reason for this is that a criminal charge is not finally determined until all avenues of appeal have been exhausted.276

This right means that a person convicted of a criminal offence must be provided with an opportunity to seek review by a higher court of the conviction made against him or her and any sentence imposed.277


Higher court


A person convicted of a criminal offence must be given an opportunity for an appeal or review of the conviction and the sentence, and the appeal or review must be heard by a court or tribunal that is higher than the court or tribunal that made the original decision. It is not sufficient that the conviction or sentence is confirmed by the same judge.278 However, the court hearing the appeal or conducting the review may be a different division of the same court providing it is differently constituted, such as the Court of Appeal of the Supreme Court of Victoria.


The court hearing the appeal or conducting the review must have the power to overturn, replace or affirm the conviction or sentence.


Nature of the appeal


The right to an appeal must be given substance so that it is an effective right of appeal or review.279 The mere presence of an appeal process may not be sufficient if the person is unable adequately to present his or her case to a higher court. A dismissal of an application for leave to appeal without any written reasons being given would violate this right.280 An effective appeal requires a ‘collective judicial decision’ that is arrived at after a hearing that should be held in public.281

The right will usually require that there is an oral hearing, although this may depend on the nature of the proceedings and the scope of the appeal.282 For example, if the issues are not complex and it would not unreasonably prejudice the accused, in the interests of expediency it is possible that the appeal could be heard by the court ‘on the papers’, without any oral hearing.


This right does not require the appeal court to conduct a retrial of the factual issues, and does not require that any further evidence be led. 283 However, a right to judicial review instead of appeal might fall short of the requirements of sub-section (4) of s. 25. 284


In international human rights law, the opportunity to ‘seek leave to appeal’ is ordinarily not considered sufficient. However, if the hearing of an application for leave to appeal entails a full review of the evidence and the law, the requirements in s. 25(4) would probably be met.285


Multiple appeals


The right under s. 25(4) is only to one appeal or review. However, if there is provision for more than one appeal within the court hierarchy, the convicted person must be given a fair opportunity to pursue each of those appeals.286

 

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274 UN Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 135 (2003) [17].


275 Evans v. Trinidad and Tobago, Human Rights Committee, Communication No. 908/2000, UN Doc. CCPR/C/77/D/908/2000 (5 May 2003) [6.3].

276 Delcourt v. Belgium (1970) 11 Eur Court HR (ser A) [25]; (1979-80) 1 EHRR 355 [25].

277 Reid v. Jamaica, Human Rights Committee, Communication No. 355/1989, UN Doc. CCPR/C/51/D/355/1989 (20 July 1994).


278 Salgar de Montejo v. Colombia, Human Rights Committee, Communication No. 64/1979, UN Doc. CCPR/C/15/D/64/197 (24 March 1982).


279 Reid v. Jamaica, Human Rights Committee, Communication No. 355/1989, UN Doc. CCPR/C/51/D/355/1989 (20 July 1994 [14.3]; Taito v. R (2002) 19 CRNZ 224 [12].


280 Taito v. R (2002) 19 CRNZ 224.


281 Taito v. R (2002) 19 CRNZ 224, 236.

282 See Taito v. R (2002) 19 CRNZ 224 and Monnell and Morris v. United Kingdom (1987) 115 Eur Court HR (ser A); (1988) 10 EHRR 205.


283 Perera v. Australia, Human Rights Committee, Communication No. 536/1993, UN Doc. CCPR/C/53/D/536/1993 (28 March 1995); H T B v. Canada, Human Rights Committee, Communication No. 534/1993, UN Doc. CCPR/C/49/D/534/1993 (3 November 1993).


284 Domukovsky v. Georgia, Human Rights Committee, Communications Nos 623/1995, 624/1995, 626/1995, 627/1995, UN Doc. CCPR/C/62/D/626/1995 (29 May 1998).


285 Lumley v. Jamaica, Human Rights Committee, Communication No. 662/1995, UN Doc. CCPR/C/65/D/662/1999 (30 April 1999).


286 Henry v. Jamaica, Human Rights Committee, Communication No. 230/1987, UN Doc. CCPR/C/43/D/230/1987 (19 November 1991).