Victorian Current Acts

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CRIMINAL PROCEDURE ACT 2009 - SECT 263

Late notice of appeal deemed to be application for leave to appeal

    (1)     A notice of appeal filed after the end of the period referred to in section 255(1) or 258 is deemed to be an application for leave to appeal on the grounds stated in the notice.

S. 263(2) amended by No. 3/2016 s. 70(1).

    (2)     The County Court or the Supreme Court, as the case requires, may grant leave to appeal under subsection (1) and the appellant may proceed with the appeal if—

        (a)     the court considers that the failure to file a notice of appeal within the period referred to in section 255(1) or 258 was due to exceptional circumstances; and

        (b)     the court is satisfied that the respondent's case would not be materially prejudiced because of the delay.

S. 263(3) inserted by No. 48/2012 s. 16, amended by No. 3/2016 s. 70(2).

    (3)     If the court does not grant leave to appeal under subsection (2), the court must strike out the appeal.

S. 263(4) inserted by No. 48/2012 s. 16, amended by No. 3/2016 s. 70(3)(b).

    (4)     If—

S. 263(4)(a) amended by No. 3/2016 s. 70(3)(a).

        (a)     the County Court or the Supreme Court, as the case requires, strikes out an appeal under subsection (3); and

        (b)     the appellant had been sentenced to a term of imprisonment or detention by the Magistrates' Court—

the registrar of the County Court or the Prothonotary of the Supreme Court, as the case requires, may issue, in accordance with the Magistrates' Court Act 1989 , a warrant to imprison the appellant and may recall and cancel that warrant.

S. 263(5) inserted by No. 48/2012 s. 16.

    (5)     If an appeal is struck out under subsection (3)—

        (a)     the sentence of the Magistrates' Court is reinstated and may be enforced as if an appeal had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and

S. 263(5)(b) amended by No. 3/2016 s. 70(4).

        (b)     the registrar of the County Court or the Prothonotary of the Supreme Court, as the case requires, must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and

        (c)     the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal.

S. 264 (Heading) amended by No. 68/2009 s. 49(m).



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