Appeals Flashcards
Appeals from summary matters - which types of appeal and to which court?
From MC to CC
Conviction and sentence appeal
sentence appeal
Do you need leave to appeal to CC?
No - de novo appeal
What should be in the notice of appeal?
S 255 provides that the notice of appeal must:
indicate whether the appeal is against conviction and sentence, or sentence alone; and
include a statement in prescribed form acknowledging that the County/Supreme Court may
impose a more severe sentence than that imposed by the Magistrates’ Court; and
an undertaking to appear to proceed with the appeal on the day fixed for the hearing and to continue to appear for the duration of the appeal
What is the warning in CC or SC appeals?
The County/Supreme Court must warn A, as early as possible in the hearing, that the court may impose a more severe sentence than that imposed in the Magistrates’ Court (s 256).
De novo appeals
Apart from appeals against the failure to fulfil an undertaking, appeals from the Magistrates’ Court under the are de novo appeals.
A is not bound by his or her plea in the Magistrates’ Court and the County Court judge must hear and determine the matter afresh. On a hearing de novo, the appellant and respondent are not limited to presenting the evidence that they presented in the court below. A party could change its formulation of the case or its defence. In addition, the matter is determined on the law as it stands at the date of the appeal (Neill v County Court of Victoria [2003])
When will DPP lodge an appeal against the sentence of a magistrate?
if it is in public interest to do so
Process for appeal by DPP
The DPP commences an appeal by filing a notice of appeal in prescribed form with a registrar of the Magistrates’ Court within 28 days after he/she was sentenced, and serving a copy of the notice on the respondent within 7 days after filing the notice (s 257-258).
Appeals by DPP for failure to fulfil undertaking at MC
According to s 260(1), the DPP may also appeal against a sentence for an IOTS in the Magistrates’ Court
if:
o the sentence was less severe because of an undertaking given by A to assist, after sentencing, law enforcement authorities; and
o the DPP considers that the person has failed, wholly or partly, to fulfil the undertaking
Can DPP lodge a further appeal after the initial appeal for failure to fulfil undertaking
If the DPP brings an appeal under s 260, the DPP cannot bring a further appeal against the sentence imposed by the County/Supreme Court (s 260(3)).
Process for DPP filing an appeal for failure to fulfil an undertaking
The DPP commences an appeal under s 260 by filing a notice of appeal in prescribed form with a registrar of the Magistrates’ Court. The DPP must sign the notice of appeal personally. A copy of the notice of appeal must be served on the respondent personally within 7 days. The Magistrates’ Court must transmit the notice of appeal to the County/Supreme Court (s 261).
