Appeals to the County Court from the Magistrates’ Court

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, an 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 (Director of Public Prosecutions) or CDPP (Commonwealth Director of Public Prosecutions) regarding a failure to fulfil an undertaking. This type of appeal may be listed at any time.

Appealing a Magistrate’s Court 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 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.

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 the Magistrate originally imposed, 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. 

It is always important to talk to a lawyer before appealing any decision to ensure that you follow the right procedure. If you engage experienced criminal lawyers, you will be in safe hands. 

If a custodial sentence was imposed at the Magistrates’ Court, you can make a bail application 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. 

Appealing outside of time

You must seek leave from a County Court judge to lodge an appeal notice outside of the 28 days. To be successful in seeking leave, you must satisfy the judge that exceptional circumstances exist that caused the appeal not to be lodged on time and that the delay will not prejudice the prosecution’s case.

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 appeal your case to the County Court.

The Crown is entitled to appeal the Magistrate’s decision

Under section 257 of the Criminal Procedure Act, the DPP have a right to appeal against the 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 or the CDPP 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 they have 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 who 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 an experienced 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 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 best for you 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 3-4 cases per day. This allows time for complete submissions to be made.

Changes to the law in relation to appeals in Victoria.

The following has been put on hold again. De novo appeals (meaning appeals will be heard from the beginning or fresh) still applies, until such time as the new legislation finally comes into force. It has currently been put on hold now until 5 July 2025.

The Legislation and proposed changes:

  • section 9 of the Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 read in conjunction with the below legislation has again allowed the delay of the introduction of this legislation. The relevant part

  • The relevant part is at page 41 of the word document

    • (1)  In section 2(3) of the Justice Legislation Amendment (Criminal Appeals) Act 2019, for “1 January 2023” substitute “5 July 2025”.

    • (2)  In section 39 of the Justice Legislation Amendment (Criminal Appeals) Act 2019, for “1 January 2024” substitute “5 July 2026”.

  • Amendments made to the Criminal Procedure Act via the JUSTICE LEGISLATION AMENDMENT (CRIMINAL APPEALS) ACT 2019 (NO. 44 OF 2019) whcih has been extended in time by the above bill, mean that when the bill is passed, matters on appeal against conviction will no longer be heard de novo but will be 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.
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