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What is an appeal?

An appeal is the review of a decision by a higher court of a decision made by a lower court. The person who is appealing is called the appellant. They will need to give notice of their intention to appeal to the court that heard their particular matter. They must do this within the time limit and according to the applicable rules. Time limits and rules vary according to which court the decision is being appealed from.

The court hearing the appeal is called the appellate court. The court may either allow or dismiss the appeal. If the court allows the appeal, they can either substitute the former decision (by the lower court) for a decision of their own, or they can send the matter back to that court for a rehearing.

Appeal period

The appeal period is the time between the start of the appeal and the decision as to whether or not to grant appeal.

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 the person has been finally convicted or acquitted of the offence/s. A matter is not finalised until the end of the appeals processes. This is generally after the time limit for lodging the appeal has passed.

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

Rehearings

If a person did not attend their hearing, they can apply for a rehearing. They have 28 days to apply from the time the court sends a notice of their sentence.

See An overview of Magistrates' Court procedure—Rehearings.

More information

Legislation

Criminal Procedure Act 2009 (Vic)

  • Chapter 6—Appeals

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

Charter of Human Rights and Responsibilities Act 2006 (Vic)

  • s. 26—right not to be tried and punished more than once

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

  • An overview of Magistrates' Court procedure—Rehearings.

Reference

Judicial College of Victoria

The Victorian Proceedings Manual has information about the various kinds of criminal appeals.

See Victorian Criminal Proceedings Manual—Appeals—Chapter 20(opens in a new window).

Acknowledgement

Thanks to VLA's James Loftus, Deputy Managing Lawyer, Advocacy team and Erin VanKrimpen, Senior Advocate in the Appeals and Strategy team for their assistance with this topic.

Updated