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Under section 254 of the Criminal Procedure Act 2009 (Vic) (CPA), both a defendant and the prosecution can appeal a sentence or conviction from the Magistrates’ or Children’s Court to the County Court if they believe the outcome was incorrect or overly harsh. Common grounds for appeal include:
The County Court provides a more thorough examination of appeals, hearing fewer cases daily than the Magistrates’ Court. This allows for more in-depth consideration of the appeal submissions.
The time limit for filing an appeal to the County Court is strict. A notice of appeal must be filed within 28 business days following the original decision in the Magistrates’ Court (s 255 CPA). The appeal must be served to the police officer who brought the charge and other relevant parties within 7 days, along with supporting affidavits and exhibits.
Appeals filed outside this timeframe require leave from a County Court judge, which complicates the process. There’s no guarantee this request will be approved, so it’s crucial to adhere to the deadline. The prosecution can appeal at any time if the defendant fails to fulfill an undertaking, with no time limits.
If a custodial sentence was imposed by the Magistrates’ Court, you may apply for bail while awaiting your appeal’s outcome in the County Court (s 265 CPA and Bail Act 1977).
Appeals in the County Court from the Magistrates’ Court are generally heard de novo, meaning the case is reviewed from the beginning. Witnesses give fresh testimony and can be cross-examined, and the judge isn’t bound by evidence from the previous court. An exception to the de novo rule applies if the appeal concerns a failure to fulfill an undertaking.
Note: Amendments to the CPA in 2019, effective as of 4 May 2023, have modified certain appeals:
After hearing the appeal, the County Court judge may decide to uphold, overturn, or modify the original conviction or sentence. The judge also has the power to impose a harsher penalty but must first warn the appealing party, giving them the option to withdraw the appeal.
When the prosecution appeals a sentence alongside the defendant’s appeal, both are heard together. The prosecution must demonstrate that the original sentence was “manifestly inadequate” and that an increased penalty serves the public interest. The same time limit applies unless an extension is granted by the judge.
If you’re considering an appeal to the County Court, our team of experienced appeals lawyers can guide you through the process. Appeals are complex, and a skilled legal professional can help ensure the correct steps are followed. We work with top barristers in Victoria to handle a wide range of appeals, including those involving serious offenses.
We offer free legal advice 24/7 at 1800 130 120 or at marcus.mklawfirm.com.au. We often assist clients with appeals following previous unsuccessful attempts with other firms.
We recommend that clients obtain audio recordings of their not-guilty hearings from the Magistrates’ Court, as these can be valuable for identifying inconsistencies and preparing a strong appeal case.
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If you are considering appealing, consult with experienced defence lawyers who can thoroughly assess your case and provide guidance on the best course of action.
Contact MK Law for 24/7 legal advice on 1800 130 120 or marcus.mklawfirm.com.au.
Prompt legal assistance is critical for preparing for appeals and achieving a favourable outcome.
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