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Appeals are open both to the defence or the prosecution. The process of appeal follows the hierarchy of the courts  so an appeal from the Magistrates’ Court will usually be heard in the County Court (but sometimes the Supreme). An appeal from the County Court is usually heard in the Supreme Court, and an appeal from a Supreme Court is usually heard in the Victorian Supreme Court of Appeal. The highest court in the hierarchy is the High Court, and is the ultimate decider of any legal issue. A person appealing is called the appellant, the person responding is called the respondent.

Appealing from the Magistrates’ Court

The most common form of appeal from the Magistrates’ Court is an appeal to the Victorian County Court. The Act that governs this right of appeal is found in the Criminal Procedure Act 2009 (Vic) with s.254 creating the right of appeal.

s.255 governs the procedural rules for the appeal process. That section provides that an appeal has to be brought within 28 days after which the sentence was imposed. The notice of appeal must state whether the appeal is against conviction or sentence and be in the form prescribed by the county court.

In some circumstances a person can appeal straight to the Supreme Court of Victoria. This is provided for under s.272and is restricted only to questions of law. Therefore factual questions are not considered by the Supreme Court, however an appellant can raise a ‘question of law’ that the magistrate had made a finding of fact that no reasonable magistrate would have made. The right of appeal again is limited to 28 days, unless exceptional circumstances are made out such as severe illness.

Both the prosecution and the defence can file appeals to the Supreme Court. The ‘commencement’ is considered the start of the appeal process, when the appeal is lodged. The affidavit is an account of the proceedings at the summary hearing, it is a sworn document either by the prosecutor, informant, applicant, defendant etc. The responding party may not need to lodge an affidavit if they agree with the outline of facts in the appellants affidavit. The facts upon which the appeal is based is decided upon the affidavit (and usually the recorded proceedings at the Magistrates’ Court).

The judge then decides the correct issue at law. Usually it will be remitted back to the Magistrates’ Court with instructions as to how to go about deciding the issue with regards to the law. The Court may make other orders that it feels is appropriate. Sometimes the Court will pass judgment if the appeal involved a finding a conclusion of a magistrate that no reasonable magistrate would have concluded. The court will also make a decision as to the costs, whether to award legal costs to the appellant or respondent.

If you wish to file an Appeal or seek advice in relation to one, call our office to speak to one of our lawyers. Grigor Lawyers can can advise and represent you in these matters.


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