Appeals

Filing an Appeal

To initiate an appeal against a Magistrates Court decision, you must lodge a Notice of Appeal within 28 days. The Notice must be filed with the Registrar of the Magistrates Court.

When filing the appeal, you must sign a statement saying that you understand that the sentence imposed by the County Court may be more severe than the original sentence. You must also sign an undertaking to appear in the County Court on a fixed date.

If you were sentenced to imprisonment originally in the Magistrates Court, it is important to note that an appeal application and a bail application are two separate processes.

Time Frames

In Victoria, a Notice of Appeal must be:

• Filed with the Registrar of the Magistrates Court within 28 days of the original decision; and
• Served on the respondent within 7 days of filing.

If 28 days have already passed since the original decision, applying for an appeal becomes a more complicated process. In this case, you must apply to the County Court for “leave”, or permission, to appeal. A judge in the County Court will consider whether leave should be granted to hear the appeal. The Court will grant leave if it is satisfied that:

• Your failure to file a Notice of Appeal within the required time frame was due to exceptional circumstances; and
• The respondent’s case will not be materially prejudiced because of the delay in filing the appeal.

To prove exceptional circumstances, you will need to provide evidence to the County Court which proves that there were special and substantial reasons for the delay.

The longer the delay in filing the Notice of Appeal, the harder it becomes to satisfy the County Court of exceptional circumstances. In cases that involve significant delays, the Court may only grant leave if it is satisfied that the appeal has reasonable prospects of being successful.

If the accused seeks to appeal their conviction (and not just their sentence), the Court must also consider whether the appeal trial would be fair. An extensive delay may materially prejudice the respondent’s case, because some evidence and witnesses may no longer be available. Further, re-opening the case may significantly impact the wellbeing of the victim.

Should the County Court choose not to grant leave to appeal, the appeal will be struck out. In this case, the original sentence of the Magistrates Court will be enforced upon the appeal being struck out.

Magistrates’ Court Sentence

Filing a Notice of Appeal causes a stay of the original sentence handed down in the Magistrates Court (except in cases where the accused was sentenced to imprisonment). However, the appeal does not cause a stay in the conviction.

If the accused was sentenced to a term of imprisonment in the Magistrates Court, the term can only be stayed if bail is granted.

Further, if the accused has been disqualified from driving, filing a Notice of Appeal does not automatically stay the disqualification. However, in some circumstances, the Magistrates Court may use its discretion to stay the disqualification until the appeal has been resolved.

The County Court Appeal Hearing

When an appeal is heard in the County Court, it is treated as a rehearing of the original proceedings in the Magistrates’ Court. However, the accused is not bound to make the same plea of guilty or not guilty. If they originally pleaded guilty, they have the right to plead not guilty and vice versa.

Because the appeal is a rehearing of the original proceedings, the prosecution carries the burden of proof and must present its case again in its totality.

Either party can present fresh evidence that was not considered during the original trial. Further, either party can change the formulation or theory of its case, should they so choose. These procedural rules are particularly important if Victorian legislation has recently changed because the appeal trial must be determined on the new laws.

During the appeal trial, the County Court Judge must warn the appellant if there is a real possibility that a more severe sentence will be imposed than what was originally imposed in the Magistrate’s Court.

Abandoning an Appeal

The appellant can apply to abandon the appeal at any stage of proceedings. This is done by filing a Notice of Abandonment of Appeal with the Registrar of the County Court. Upon abandonment, the County Court will make an order striking out the appeal.

Abandoning an appeal results in the original Magistrates’ Court sentence being reinstated and enforced.

Abandoning an Appeal

Should the County Court dismiss or strike out an appeal, the Court may also make an order for the appellant to pay part or all of the respondent’s costs of the appeal. The County Court may make a cost order if it is satisfied that the appellant:

• Brough the appeal vexatiously;
• Brought the appeal frivolously; or
• The appeal was an abuse of process.