When can you get a rehearing in the Magistrates Court?

There are a variety of reasons why you might want a rehearing of your case.

  • You were absent from Court on the day your criminal matter was listed, so you want to apply to have the matter reheard;
  • There might have been an error of law made by the presiding magistrate or judge or (this is an appeal not a rehearing, you will have to go to the Supreme Court);
  • You may wish to have your sentence or conviction appealed from a magistrate or judicial registrar (again this is an appeal not a rehearing, for a judicial registrar you can appeal to the magistrates court or directly to the county court, for a magistrate, directly to the county court);

The following article seeks to clarify which of the above scenarios apply to your situation and explain the best pathway forward to have your case reheard.

Apply for a rehearing

You can attend the Magistrates Court and speak to a court registrar and ask for a form from them, so you can apply to the court to have your matter reheard.

Unlike for personal safety orders rehearing forms or family violence orders rehearing forms, you cannot obtain the form for a rehearing of a criminal matter, off the Magistrates Court website, you must attend the court to obtain the form and then hand it back to a registrar at the court.

Please also understand there are different tests that apply whether the rehearing relates to a PSIO rehearing, a family violence rehearing or a criminal case rehearing. The first two are considered civil in nature.

In relation to the rehearing of a criminal matter, the legislation is found at Section 88 of the Criminal Procedure Act 2009 (Vic) which outlines that if you were unable to attend your criminal proceeding in the Magistrates’ Court and you had a sentence imposed on you, you or your lawyer can apply to the Magistrates’ Court for an order that the matter be re-listed. This process is known as having your case ‘reheard’.

If you were unable to attend Court and a magistrate found against you and imposed a sentence, section 87(4) of the Criminal Procedure Act makes it plain that the Court must serve upon you written notice about the outcome and provide information to you about your right for a rehearing.

Rehearing for Children’s Court Matters

The procedure for having my case reheard?

The process for having your case reheard is set-out in sections 89 and 90 of the Criminal Procedure Act.

  • Section 89 of the Criminal Procedure Act specifies that you, or your lawyer, must first formulate a notice of intention to apply for a rehearing. The notice of intention must state the reasons why you did not appear in court on the day of your proceeding.
  • The notice must be filed at the local Magistrates Court where the sentence was imposed.
  • Section 90 of the Criminal Procedure Act indicates that you, or your lawyer, must then serve the notice on the respondent (being the police informant that originally filed the charge), in accordance with s392 of the Criminal Procedure Act, within 7 days of filing the notice with the court.
  • A date and time will then be nominated to hear the application where a Magistrate will decide whether your matter will reheard.

There are some instances in which your case will be reheard automatically.

  • If the Magistrate is satisfied that the charge-sheet was not brought to your attention prior to the hearing of your charge, the Court must set aside any findings and orders made in the earlier proceeding and rehear your matter.
  • Additionally, if you apply for a rehearing within 28 days of the date of receiving the notice from the Court following your non attendance, the Court must set aside the findings and the orders made in the earlier proceeding and rehear the matter.

What happens to the sentence that was made against me?

Per section 91(1) of the Criminal Procedure Act, after filing a notice of intention, the sentence imposed is stayed until the application for rehearing has been heard.

If a rehearing is granted, the sentence is then stayed until the charge has been reheard. Having your sentence ‘stayed’ essentially means that the court is prevented from implementing its sentence until it is reheard.

Licence suspension and a rehearing application

However, there is an exception to this rule. If the sentence was an order for the cancellation, suspension or variation of a driver’s license or learner permit or the disqualification of a person from obtaining a driver’s license or permit for driving a motor vehicle, the sentence is not automatically stayed. In this scenario, on or after the filing of a notice of intention, you may apply for a stay relating to your licence, pending the determination of the rehearing. In a practical sense, if your matter is listed quickly, then there may be no point in making this application, or in the alternative if you are defending the charge then, it may well be in your interests to make a separate application in relation to any licence order as soon as possible.

If you fail to appear at the time fixed for the rehearing of your case, your application for a rehearing is struck out and you will then only be able to reapply if you obtain the leave of a Magistrate.

If a Magistrate denies your application for rehearing you can lodge an appeal with the County Court or if the matter relates to an error of law, with the Supreme Court.

I believe there was an error in the application of law in my Magistrates’ Court proceeding

Section 272(1) of the Criminal Procedure Act outlines that a party to a criminal proceeding in the Magistrates Court, other than a committal proceeding, is able to appeal the final order of the Magistrate to the Supreme Court on a question of law.

How to Appeal from the Magistrates’ Court to the Supreme Court on a Question of Law?

Section 272 of the Criminal Procedure Act outlines the process of appealing from the Magistrates’ Court to the Supreme Court on a question of law.

  • An appeal to the Supreme Court on a question of law is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days of receiving the order from the Magistrates’ Court.
  • A copy of the notice of appeal must then be served on the Supreme Court by you personally or your lawyer within 7 days of the day on which the notice of appeal was filed

If you fail to file a notice of appeal within 28 days of receiving your order from the Magistrates Court, you may apply for leave to appeal. The Supreme Court may grant leave if it is of the opinion that failure to file the notice of appeal within the 28-day period was due to exceptional circumstances and is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay. For a more comprehensive look at appealing to the Supreme Court on an error of law, follow the link.

What happens next?

Section 272(6) of the Criminal Procedure Act outlines that filing a notice of appeal to the Supreme Court on a question of law does not operate as a stay of the order made by the Magistrates’ Court unless the Supreme Court otherwise orders.

After hearing and making a decision on appeal, the Supreme Court is able to make any order that it thinks appropriate. This can include an order remitting the case for rehearing to the Magistrates’ Court, providing a stay of any order made and granting bail in the interim period.

Additionally, it should be noted that section 273 of the Criminal Procedure Act outlines that an appeal on a question of law to the Supreme Court abandons finally and conclusively any right of appeal to the County Court. This is why you should always consult a lawyer before considering an appeal to the Supreme Court, it maybe the case that you are better off appealing to the County Court.

Appealing Sentence / Conviction to the County Court from the Magistrates Court;

According to section 254 of the Criminal Procedure Act, a person convicted of an offence in the Magistrates’ Court may appeal to the County Court against the conviction and sentence imposed by the court, or the sentence alone. That being said, if the offence was handed down by the Chief Magistrate, the appeal is to be made to the Trial Division of the Supreme Court.

How to appeal my conviction or sentence to the County Court?

Section 255 of the Criminal Procedure Act outlines the process of appealing a sentence or conviction to the County Court.

An appeal of sentence or conviction to the County Court is commenced by filing a notice of appeal with the registrar of the Magistrates’ Court, at any venue of the Magistrates’ Court, within 28 days after the day on which the sentence of the Magistrates Court was imposed. The notice of appeal must include a few things;

  • Firstly, it must state whether the appeal is against conviction and sentence, or sentence alone; and be in the form prescribed by the rules of the County Court.
  • It must also include a statement in the form prescribed by the rules of the County Court signed by the appellant to the effect that the appellant is aware that on appeal the court may impose a sentence more severe than that which was handed down in the Magistrates’ Court.
  • Finally, it must include an undertaking signed by the appellant to appear at the County Court to proceed with the appeal at a time and place fixed or to be fixed by the registrar of the County Court, to appear at the County Court for the duration of the appeal, and to give written notice without delay to the registrar of the County Court of any change of address of the appellant from that appearing in the notice of appeal.

A copy of the notice of appeal must then be served on the County Court within 7 days of filing the notice.

What happens next?

Section 256 of the Criminal Procedure Act prescribes that an appeal to the County Court on sentence or convictions must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates’ Court (please be aware that this is changing, following the link above for more).

On the hearing of an appeal, the County Court must set aside the sentence of the Magistrates’ Court. The County Court may then impose any sentence which the court considers appropriate in accordance with powers of the Magistrates Court. The County Court may also exercise any power which the Magistrates’ Court exercised or could have exercised.

Additionally, the County Court may backdate a sentence imposed to a date not earlier than the date of the sentence imposed at the Magistrates’ Court.

Appeal sentence received by a Judicial Registrar in the Magistrates Court

Section 16K(3) of the Magistrates Court Act 1989 outlines that a determination of the Court constituted by a judicial registrar may be appealed from or reviewed on application of a party to the proceeding or on the Court’s own motion. You can also appeal directly to the County Court.

How to get a determination by a Judicial Registrar in the Magistrates Court reviewed

Section 16 of the Magistrates’ Court (Judicial Registrars) Rules 2015 outlines the process of getting a determination of the Court constituted by a judicial registrar reviewed.

An application for review of a determination made by a judicial registrar in the Magistrates Court must accompanied by a form 1, and an affidavit that states the reasons for the application. Form 1 can be found on page 13 of the Magistrates’ Court (Judicial Registrars) Rules 2015 and involves filling in basic details. Any affidavit should be prepared by a skilled criminal defence lawyer.

The application and affidavit must be filed within 14 days after the day on which the determination was made. However, this period can be extended before or after the time by the Court.

What happens next?

The application for review must then be determined by the court after consideration of the application and the accompanying affidavit.

The filing of an application for review does not operate as a stay of any order made by the judicial registrar. However, an application to the Court constituted by the judicial registrar which made the order, or to the Court constituted by a Magistrate can be made for a stay of any order.

If the Court directs that the hearing and determination of a proceeding by the judicial registrar be reviewed, the direction will operate as a stay on any order made by the judicial registrar in the proceeding, unless the Court otherwise orders.

How to work out the best way to get a rehearing?

As you can see there are many options to have your case reheard. Identifying the correct pathway in relation to your case should only be decided in consultation with an experienced criminal lawyer, if you need to list an application for rehearing or appeal, call our office today.

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