Appeal An Error Of Law From The Magistrates Court
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Should I Appeal an Error of Law from the Magistrates Court?
If the defendant has been charged with a criminal offence and proceedings have begun in the Magistrates Court of Victoria, they can make an application to appeal the order to the Supreme Court of Victoria (s 272(1) Criminal Procedure Act 2009 (Vic) (CPA)). However, the defendant has no right at law to do this if it is a committal hearing.
The reason for making the appeal must relate to a question of law (this is a legal issue, not a factual issue) from the order handed down in the Magistrates Court. If the Supreme Court agrees to hear an appeal in relation to a question of law, an appeal cannot proceed before the County Court of Victoria in relation to your sentence or conviction (s 273 CPA).
This is a very technical area of law. If you think an injustice has occurred in the Magistrates Court, engage a professional with expertise who can advise you the prospects of an appeal in your case. Our team of expert appeal lawyers have years of experience and knowledge weighing up individual cases of deciding whether it will be more successful appealing to the Supreme Court on a question of law or appealing to the County Court against the sentence or conviction. We engage and instruct Victoria’s best barristers to defend a number of vast and complex sentence appeals (from the Magistrates Court to the County Court or from the County Court to the Supreme Court or Court of Appeal), conviction appeals (from the Magistrates Court to the County Court or from the County Court to the Supreme Court, Court of Appeal or Crown Appeal (High Court of Australia)) for murder, jury and sexual offences in the Victorian Court of Appeal.
We are available for free legal advice 24/7 on 1800 130 120 or at marcus.mklawfirm.com.au to help you understand the appeals process and the time limits you need to strictly adhere to. We often have clients coming to us to assist them with the appeal process following unsuccessful attempts by another law firm.
Important Considerations Before Appealing an Error of Law from the Magistrates Court
- Whether the Magistrates Court applied the correct legal test?
- Whether evidence is available to support a finding of fact made?
- Can the Magistrate (as a reasonable person) rely on evidence to reach their finding (i.e. was the finding open to them under the law)?
- You cannot merely argue the finding was against the weight of the evidence
- You need to have evidence to indicate the Magistrate considered an irrelevant factor, failed to use their discretion in how they weighed up the evidence and incorrectly applied the law to the facts in issue.
- Whether the facts come within the proper interpretation of the Act?
Time Limits for Lodging an Appeal
Strict time limits apply to appeals in the Supreme Court. The defendant must file a notice of appeal on an error of law within 28 business days of the finding in the lower Court. You must serve and notify the other party to the matter and file all affidavits (including exhibits) with the Court within this timeframe.
Any application that is filed outside of this time will require you to seek leave to appeal out of time. This unnecessarily makes the process much more complicated. There is no guarantee your application will be accepted, so avoid this wherever possible.
Determinations Following an Appeal
After hearing your appeal from the Magistrates Court, the presiding judge will make a determination as to whether or not they are satisfied an error of law was made. One of the following decisions will be made:
- Returning the matter to a different Magistrate in the Magistrates Court for a re-determination
- Hear the matter themselves if the state of the evidence is good and it is in the public’s interest
- Dismiss the appeal if satisfied the defendant did not lose the opportunity of a conviction and/or a review lacked merit
Example of Error of Law Case
- Engebretson v Bartlett
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- Facts: the defendant was convicted and sentenced to imprisonment for recklessly causing serious injury to another. Counsel for defendant argued the defence of self-defence. The Magistrate excluded key evidence from a witness that the defendant sought to rely on to show different circumstances that led to the offending behaviour.
- Issue: the issue in question on appeal was whether or not the Magistrate was correct in finding the evidence was inadmissible?
- Decision: the Supreme Court found the Magistrate improperly excluded the evidence and this amounted to an error of law. The matter returned to a different Magistrate in the Magistrates Court for a re-determination
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Contact Us
At MK Law Firm, we specialize in helping clients appeal errors of law from the Magistrates’ Court. Our experienced legal team understands the complexities of the appeal process and is here to guide you every step of the way.
We offer free legal advice 24/7 to ensure you get the support you need, whenever you need it. If you’re looking to challenge a legal decision, contact us at MK Law Firm today. Call (03) 4054 5428 for immediate assistance.
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- 2/212 Barkly Street, St Kilda Victoria, 3182 Australia
- 1800 130 120
- marcus@mklawfirm.com.au