Appeals to the County Court – Criminal Procedure Act
The Criminal Procedure Act 2009 (Vic) creates the following rights of appeal from the Magistrates’ Court:
- Appeal by an accused against conviction and sentence;
- Appeal by an accused against sentence;
- Appeal by the prosecution against sentence; and
- Appeal by the prosecution against an offender’s failure to fulfil an undertaking.
Following a decision in the Magistrates’ Court, the applicant has 28 days to lodge an appeal against conviction and sentence or against sentence alone, with the registrar of the Magistrates’ Court. These time limits do not apply to an appeal brought by the DPP or CDPP (the prosecution) regarding a failure to fulfil an undertaking. This type of appeal may be listed at any time.
You are entitled to appeal the Magistrates decision
Under section 254 of the Criminal Procedure Act if you are convicted at the Magistrates’ Court you have the right to appeal to the County Court against the conviction and sentence imposed or against the sentence alone.
As per section 255 of the Criminal Procedure Act a Notice of Appeal must be lodged within 28 days at the Magistrates’ Court Criminal Registry. To lodge the notice outside of the 28 days you must seek leave from a County Court judge. To be successful in seeking leave you must satisfy the judge that there were exceptional circumstances as to why the appeal was not lodged in the required time frame and that the delay in lodging the appeal would not prejudice the prosecution’s case.
The informant (the police officer who initiated the original charges) must be notified of the appeal within 7 days.
Per section 256(3) of the Criminal Procedure Act a County Court Judge may impose a more severe sentence than that which was originally imposed by the Magistrate but in the County Court the Judge must warn any appellant prior to imposing a harsher sentence, thereby giving the appellee the opportunity to desist with the appeal.
Prior to appealing any decision, it is always important to talk to a lawyer to ensure that you follow the right procedure. If you engage experienced lawyers, you will be in safe hands.
If a custodial sentence was imposed at the Magistrates Court, you can make an application for appeal bail under section 265 of the Criminal Procedure Act for bail pending appeal. Section 265 makes it plain that the bail act 1977 applies to any application.
We handle a large number of appeals to the County Court each year. If you feel that justice was not served when your matter was heard, call our office today to talk to a criminal lawyer about how you might go about appealing your case to the County Court.
The Crown is entitled to appeal the Magistrates decision
Under section 257 of the Criminal Procedure Act the DPP have a right to appeal against sentence if they believe there is an error in the sentence imposed and that it is in the public interest to appeal the sentence. As with the accused the DPP (department of public prosecution) or the CDPP (Commonwealth Department of Public Prosecution) must adhere to the same timelines unless they are granted permission by a County Court judge to have additional time. It should be noted these types of appeals are very rare.
Sometimes a Magistrate may impose a lesser sentence on an offender because he or she has given an undertaking to law enforcement authorities to assist with the investigation and prosecution of a particular matter. If the offender subsequently fails to fulfil that promise, the prosecution can appeal directly to the County Court against the sentence imposed by a Magistrates’ Court as per the Criminal Procedure Act at section 260.
The positive thing for defendants, or respondents in the case of a Crown appeal, is that the Appeals Costs Board will usually provide some level of financial cover to an accused that is being appealed by the Crown.
If you are faced with an appeal by the DPP or CDPP call our office today to talk to a criminal lawyer about representation in the County Court.
County Court Approach to Appeals
Excluding appeals against a failure to fulfil an undertaking, appeals from the Magistrates’ Court are heard de novo (from the beginning), meaning the County Court will determine the matter anew. This means that the offender is not bound by their plea in the Magistrates’ Court. Nor are the parties limited to presenting the evidence as it was presented in the Magistrates’ Court.
It is often advisable to obtain the audio recordings of the hearing at the Magistrates’ Court in relation to not guilty hearings. This enables the appeal lawyer to look for inconsistencies from the original proceedings when preparing the appeal.
The advantage of the matter being heard in the County Court, particularly for appeals against sentence, is that matters are not rushed. As opposed to the hundred cases that might proceed at the Magistrates’ Court in one day, the Judge sitting in the County Court hearing appeals will in most instances only hear three to four cases per day. This allows time for complete submissions to be made.
Changes to the law in relation to appeals in Victoria.
As of 3 July 2021, amendments made to the Criminal Procedure Act will commence. Matters on appeal against conviction will no longer be heard de novo but determined on the transcripts of the original hearing, with further evidence admitted only if the County Court allows it in the interests of justice.
Appeals in relation to sentence will be determined the same way and may only be allowed if the County Court finds there are sufficient reasons to impose a different sentence. Reasons for the original sentence will be taken into account when considering the appeal.