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Lodging an appeal

This page explains how to lodge an appeal against a Magistrates' Court conviction.

Who can appeal?

A person who is convicted of a criminal offence in the Magistrates' Court has an automatic right to appeal to the County Court. If the magistrate who heard the original trial was a dual commission holder, the appeal has to go to the Trial Division of the Supreme Court.

The person may appeal:

  • their conviction and sentence
  • only the length of the sentence they were given, or
  • if they believe that a conviction should not have been recorded.

The application is lodged in the Magistrates' Court. It must follow the County Court or Supreme Court Rules. once filed in the Magistrate's Court the court registrar will transmit the application to the court where the appeal is to be held.

The prosecution or even a superior court may also appeal. Appeals that are started by a superior court provide a mechanism for overseeing the operation of the magistrates courts, although these are relatively uncommon.

See ss. 254, 255, 269, 270—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Appeals by the convicted person

Anyone who is thinking of lodging an appeal should get legal advice first. It is possible that the appeal judge could give a higher penalty than was given in the Magistrates' Court.

The County Court (or Supreme Court) will quash the finding of the magistrates' court and will hear the entire case again. This is called a hearing de novo. It allows the appellant to call new witnesses and the appeal hearing may proceed very differently from the original trial. At the end of the trial the court will make its own orders. This means that an appellant should get legal advice before appealing as their sentence may be higher than the sentence handed down in the original trial.

See ss. 255, 256—Criminal Procedure Act 2009 (Vic)(opens in a new window).

What happens to the original decision

The appeal operates as a stay of the sentence (for the original trial). This means the magistrates' court decision is put on hold until the outcome of the appeal unless the matter involves an appeal against a decision to disqualify a driver under the Road Safety Act 1986 (Vic). These disqualifications are not put on hold unless the court decides that a stay is appropriate.

See s. 264—Criminal Procedure Act 2009 (Vic)(opens in a new window) and s. 29—Road Safety Act 1986 (Vic)(opens in a new window).

Time limit for lodging

The appellant (person who is lodging an appeal) has 28 days from the time that they are sentenced to file a Notice of Appeal. This notice can be filed at any Magistrates' Court venue, it does not have to be filed where the trial was heard.

If someone wants to appeal after the 28-day time limit has expired, they will have to apply for leave (permission) to appeal. An appeal application under these circumstances will be treated as an application for leave to appeal.

Leave to appeal will be granted by the County or Supreme courts if they consider that the failure to file the appeal notice on time was due to exceptional circumstances and they are satisfied that the respondent's case would not be 'materially prejudiced' because of the delay.

If the court does not grant leave to appeal, the application for appeal will be struck out.

See ss. 255, 263—Criminal Procedure Act 2009 (Vic)(opens in a new window).

If the convicted person fails to attend court

If the convicted person filed for the appeal and then fails to show up, the County or Supreme Court may either:

  • strike out the appeal, or
  • adjourn the proceeding.

If the appeal is struck out, the original sentence will be reinstated. The period where the proceedings were stayed (put on hold) is not counted in any penalty.

If the appellant can convince the court that the failure to turn up at court was not their fault, the striking out could be set aside and the appeal hearing will be set down for another date.

See s. 267—Criminal Procedure Act 2009 (Vic)(opens in a new window).

If convicted person does not turn up to an appeal sought by the prosecution

The County Court may hear the matter without them. However, there are limits on the kind of sentences that can be given. In these cases, the court will adjourn proceedings and may issue a warrant to arrest that person.

See s. 267—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Appeals by the prosecution—appeal against sentence

The prosecution does not have an automatic right to appeal although they may appeal against the sentence that was ordered if they believe that it is in the public interest. These appeals are also heard in the County or Supreme Court, depending on the role of the trial magistrate.

See ss. 257, 258—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Appeal against sentence for breach of undertaking

Sometimes the accused may be given a more lenient sentence because they promised to help the prosecution with the investigation of a criminal matter. If the person later fails to keep this promise, the prosecution may appeal to the County Court. This appeal will be an appeal against sentence, based on the breach of agreement. It will not be a re-hearing.

See s. 262—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Abandoning an appeal

If a convicted person lodges an appeal to the County Supreme Court and then changes their mind, they can formally abandon the appeal by filing a notice of abandonment of appeal. If a person wants to continue only an appeal against the length of their sentence but not their conviction, they must give notice in writing to the court and the respondent.

See s. 266—Criminal Procedure Act 2009 (Vic)(opens in a new window).

See Forms.

Appeal to the Supreme Court

The convicted person or prosecution may also appeal directly to the Supreme Court on a question of law. Appeals must be lodged within 28 days of the of the original sentence in accordance with the rules of the Supreme Court.

in some cases, a person can appeal to the Supreme Court of Appeal against their conviction or sentence in their trial. The Court of Appeal must agree to this.

See s. 272 and Part 6.3—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Double jeopardy

The common law principle of double jeopardy stops a person being tried and punished more than once for the same crime. This does not contradict the appeals process as double jeopardy only applies after a matter has been finally convicted or acquitted. A matter is not finalised until the end of potential appeals processes. Generally, after the expiry of the time limit for lodging an appeal has passed.

See s. 26 Charter of Human Rights and Responsibilities Act 2006 (Vic)(opens in a new window).

More information

Legislation

Criminal Procedure Act 2009 (Vic)

  • Chapter 6—Appeals and cases stated
  • s. 254—right of appeal by a person convicted in the Magistrates' Court
  • s. 255—how an appeal is commenced
  • s. 256(1)—the appeal will be heard by a single Judge of the County Court
  • s. 257(1)—appeal by the prosecution
  • s. 258—how appeal by prosecution is commenced
  • s. 260(1)—right of appeal for failure to fulfil an undertaking
  • s. 262—an appeal not to be a re-hearing if due to the convicted person failing to adhere to an undertaking
  • s. 263—late notice of appeal deemed to be application for leave to appeal
  • s. 266—process for abandoning an appeal
  • s. 267(2)(a)—time during a stay is not counted as part of the penalty if an appeal is struck out
  • s. 272—appeal to the Supreme Court on a question of law
  • s. 283—right of appeal against a sentence of imprisonment imposed by the county court on appeal from the Magistrates' Court
  • part 6.3—appeal and case stated from County Court or Trial Division of Supreme Court to Court of Appeal

See Criminal Procedure Act 2009 (Vic)(opens in a new window).

County Court Criminal Procedure Rules 2019 (Vic)

  • Order 3—Appeal to County Court under Part 6.1 of Criminal Procedure Act 2009 (Vic)
  • Form 3A—Notice of Appeal
  • Form 3B—Information for the appellant

See County Court Criminal Procedure Rules 2019 (Vic)(opens in a new window).

Charter of Human Rights and Responsibilities 2006 (Vic)

  • s. 26—law against double jeopardy

See Charter of Human Rights and Responsibilities Act 2006 (Vic)(opens in a new window).

Magistrates' Court Criminal Procedure Rules 2019 (Vic)

  • Order 5—Appeals
  • r. 78—procedure on appeal from Magistrates' Court to appropriate court
  • r. 80—application for leave following the late filing of an appeal to the appropriate court
  • Part 2—appeals to the Supreme Court

See Magistrates' Court Criminal Procedure Rules 2019 (Vic)(opens in a new window).

Road Safety Act 1986 (Vic)

  • s. 29—appeal against disqualification, cancellation, suspension or variation by order of Magistrates' Court or Children's Court

See Road Safety Act 1986 (Vic)(opens in a new window).

Reference

Department of Justice and Community Safety (DJCS)

The Department of Justice site has a publication 'Criminal Procedure Act 2009 - A brief introduction' that explains the changes to criminal procedure in detail. See particularly:

  • Appeals against conviction
  • Appeals against sentence

See Department of Justice and Community Safety—Criminal Procedure Act 2009 - A brief introduction(opens in a new window)

County Court of Victoria

County Court of Victoria site lists some forms related to lodging an appeal. Forms 3A and 3B are not included in the list:

  • Notice of abandonment of appeal
  • Written notice abandoning conviction portion of appeal
  • Application to set aside an order striking out an appeal due to non-appearance

See County Court—Forms and fees.(opens in a new window)

Updated