Victorian Numbered Acts Victorian Numbered ActsFor Division 1 of Part 6.1 of the Criminal Procedure Act 2009 substitute —
(1) Subject to subsections (2) to (4), a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against either or both of—
(a) the conviction; and
(b) the sentence.
Notes
1 See the definitions of conviction and sentence in section 3.
2 Other Acts may provide that other orders may be appealed against as if they were a sentence. See, for example, section 142 of the Confiscation Act 1997 .
(2) Leave to appeal is required from the County Court for an appeal against conviction if—
(a) the person was convicted following a plea of guilty; or
(b) subject to subsection (3), the person was convicted and sentenced but did not appear in the criminal proceeding in the Magistrates' Court.
(3) A person referred to in subsection (2)(b) must not seek leave to appeal if—
(a) the person has not made an application under section 88 in respect of the charge on which the person was convicted; or
Note
Section 88 provides that a person referred to in subsection (2)(b) may apply to the Magistrates' Court for an order that a charge be reheard.
(b) the person has made an application referred to in paragraph (a) that has not yet been determined.
(4) If the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal or application for leave to appeal is to be made to the Trial Division of the Supreme Court.
(1) Subject to subsection (2), an appeal under section 254, or an application for leave to appeal under that section, is commenced by filing a notice of appeal or an application for leave to appeal, as the case requires, with a registrar of the Magistrates' Court at any venue of the Magistrates' Court within 28 days after the day on which the sentence of the Magistrates' Court is imposed.
(2) If section 254(2)(b) applies, the application for leave to appeal is commenced by filing an application for leave to appeal with a registrar of the Magistrates' Court at any venue of the Magistrates' Court within 28 days after the Magistrates' Court did not order a rehearing under section 92.
(3) A copy of the notice of appeal or the application for leave to appeal, as the case requires, must be served on the respondent in accordance with section 392 within 7 days after the day on which the notice or application is filed.
(4) A notice of appeal must—
(a) state whether the appeal is against conviction, sentence or both; and
(b) state whether the appellant was convicted following a plea of guilty and, if so, whether the Magistrates' Court gave a sentence indication; and
(c) be in the form, and include the information, prescribed by the rules of the appellate court.
(5) An application for leave to appeal must—
(a) state whether the applicant—
(i) was convicted following a plea of guilty and, if so, whether the Magistrates' Court gave a sentence indication; or
(ii) did not appear in the criminal proceeding in the Magistrates' Court; and
(b) if paragraph (a)(ii) applies, state the date on which the Magistrates' Court did not order a rehearing under section 92; and
(c) be in the form, and include the information, prescribed by the rules of the appellate court.
(6) A notice of appeal or an application for leave to appeal must include a statement that—
(a) is to the effect that the appellant or applicant is aware that on appeal the appellate court may impose a sentence more severe than that sought to be appealed against or for which leave to appeal is sought; and
(b) is in the form prescribed by the rules of the appellate court; and
(c) is signed by the appellant or applicant.
(7) A notice of appeal or an application for leave to appeal must also include an undertaking signed by the appellant or applicant, in the manner prescribed by the rules of the appellate court—
(a) to appear at the appellate court to proceed with the appeal or application at a place and on a day fixed or to be fixed by the registrar of the County Court or the Prothonotary (as the case requires) and to appear at the appellate court for the duration of the appeal or application; and
(b) to give written notice without delay to the registrar of the County Court or the Prothonotary, as the case requires, of any change to the following information as appearing in the notice of appeal or application for leave to appeal—
(i) the address of the appellant or applicant;
(ii) other information prescribed in the rules of the appellate court.
(8) Before accepting a notice of appeal or an application for leave to appeal, a registrar of the Magistrates' Court must, if the person seeking to file the notice of appeal or application for leave to appeal is not the proposed appellant or applicant, be satisfied that the proposed appellant or proposed applicant has signed the statement required to be included in the notice of appeal or the application for leave to appeal by subsection (6).
(9) A notice of appeal or an application for leave to appeal filed under this section must be transmitted to the appellate court.
(1) Within 28 days after filing a notice of appeal or an application for leave to appeal against the conviction imposed by the Magistrates' Court, the appellant or applicant must file a summary of appeal notice in the appellate court.
(2) A summary of appeal notice must—
(a) state the general grounds of appeal or application; and
(b) be in the form prescribed by the rules of the appellate court.
(1) On an application for leave to appeal, the appellate court may only grant leave to appeal if satisfied that it is in the interests of justice to do so.
(2) For the purposes of subsection (1), the appellate court may have regard to the following factors—
(a) if the application relates to a conviction following a plea of guilty—
(i) the circumstances in which the person entered the plea; and
(ii) the time taken to apply for leave to appeal the conviction; and
(iii) any other matter that the court considers relevant;
(b) if the application relates to a conviction where the person did not appear in the criminal proceeding in the Magistrates' Court—
(i) the time taken to apply for leave to appeal the conviction; and
(ii) any other matter that the court considers relevant.
(1) In determining an appeal against conviction under section 254, the appellate court must determine the appeal by way of rehearing—
(a) on either—
(i) the evidence given before the Magistrates' Court in the summary hearing; or
(ii) if the whole of the recording of that evidence is unavailable, the evidence received under section 265D(2); and
(b) on the evidence received in the appeal under section 265E (if any); and
(c) having regard to the reasons of the Magistrates' Court in the summary hearing.
Note
Section 265C provides for the appellate court to make orders for the provision of transcripts and reasons.
(2) If the appellate court allows the appeal, the court must—
(a) set aside the conviction that was the subject of the appeal; and
(b) either—
(i) remit the proceeding in accordance with subsection (3); or
(ii) deal with the appeal in accordance with subsection (4).
(3) On allowing appeal against conviction for which leave was required under section 254(2), the appellate court may remit the proceeding to the Magistrates' Court with or without any direction in law.
Note
Section 256A provides further for these remittals.
(4) On allowing any appeal against conviction under section 254, whether or not leave was required under section 254(2), the appellate court may—
(a) dismiss the charge for the offence that was the subject of the appeal; and
(b) if—
(i) at any time in the summary hearing there was before the Magistrates' Court a charge against the appellant other than the charge for the offence that is the subject of the appeal; and
(ii) the appellant could have been found guilty of that other charge; and
(iii) the appellate court is satisfied, beyond reasonable doubt, that the appellant is guilty of the offence that is the subject of that other charge—
reinstate that other charge (if necessary) and enter a judgment of conviction for the offence to which it relates and impose a sentence for that offence that is no more severe than the sentence that was imposed for the offence that was the subject of the appeal; and
(c) vary a sentence that—
(i) was imposed for an offence that was not the subject of the appeal at or after the time when the appellant was sentenced for the offence that was the subject of the appeal; and
(ii) took into account the sentence for the offence that was the subject of the appeal; and
(d) exercise any power which the Magistrates' Court could have exercised.
(5) The power under subsection (4)(c) to vary the sentence referred to in that provision may still be exercised even if the sentence imposed by the Magistrates' Court is an aggregate sentence of imprisonment.
(6) If, at the conclusion of an appeal being dealt with under subsection (4), the appellant remains convicted of more than one offence, the appellate court may impose any sentences that the Magistrates' Court could have imposed for those offences.
Note
This section previously provided for appeals in which charges were reheard de novo. The Justice Legislation Amendment (Criminal Appeals) Act 2019 abolished those de novo appeals and replaced them with these appeals, which instead are by way of rehearing on the evidence given before the Magistrates' Court. (Additionally, sections 265D and 265E provide for the receipt of further evidence in certain circumstances.)
(1) This section applies if, on an appeal against conviction under section 254, the appellate court remits the proceeding to the Magistrates' Court under section 256(3).
(2) On the proceeding being remitted—
(a) the following charges are reinstated—
(i) each charge for which a conviction was set aside on the appeal; and
(ii) each charge described in subsection (3); and
(b) the following sentences are set aside—
(i) each sentence imposed by the Magistrates' Court in respect of a conviction that was set aside on appeal; and
(ii) each sentence imposed by the Magistrates' Court on any other charge in the summary hearing from which the appeal was brought.
(3) A charge is reinstated under subsection (2)(a)(ii) if—
(a) it was contained in a charge-sheet that also contained a charge for which a conviction was set aside on the appeal; and
(b) in the summary hearing, the charge was not struck out for non-compliance with section 7; and
(c) at the conclusion of the appeal, the appellant does not remain convicted of the charge.
(4) The Magistrates' Court must—
(a) summarily hear and determine each charge reinstated under subsection (2)(a); and
(b) re-sentence the offender on each charge for which the sentence is set aside under subsection (2)(b)(ii).
(1) In determining an appeal against sentence under section 254, the appellate court must determine the appeal on the evidence and other material that was before the Magistrates' Court for the sentencing hearing.
Note
Subsection (3) also permits the appellate court to consider other matters.
(2) Without limiting subsection (1), the appellate court may consider the following—
(a) if the appellant pleaded guilty, the agreed statement of facts on which the Magistrates' Court relied to impose the sentence that is the subject of the appeal;
(b) the criminal record of the appellant, if any;
(c) any documentary evidence that was before the Magistrates' Court for the sentencing hearing;
(d) if oral evidence was taken from a witness or the appellant at the sentencing hearing, a transcript of that evidence.
(3) The appellate court may also consider—
(a) other evidence, material or information that—
(i) relates to matters that occurred after the Magistrates' Court sentenced the appellant; and
(ii) concerns the circumstances of the appellant; and
(b) any submissions made during the hearing of the appeal; and
(c) if an appeal was also brought against the conviction to which the sentence relates, the evidence received in that appeal under section 265D or 265E (if any); and
(d) if there is a factual issue in dispute that the court considers relevant and necessary to determining the appeal, any other evidence given before the Magistrates' Court in the summary hearing.
(4) For the purposes of subsections (1), (2) and (3), the appellate court may inform itself of what evidence or other material was before the Magistrates' Court in any way it sees fit.
(5) In determining an appeal against sentence under section 254—
(a) the appellate court must allow the appeal if it finds that there are substantial reasons to impose a different sentence from that imposed by the Magistrates' Court; and
(b) must dismiss the appeal in any other case.
(6) For the purposes of subsection (5), in determining whether there are substantial reasons to impose a different sentence the appellate court must have regard to—
(a) the reasons of the Magistrates' Court in the summary hearing; and
(b) the need for a just and fair outcome.
(7) The determination of substantial reasons for the purposes of this section—
(a) does not require a specific error of law to be identified; and
(b) is not satisfied merely by the identification of a deficiency in the sentencing remarks made by the magistrate constituting the Magistrates' Court in the summary hearing; and
(c) requires more than it being merely arguable that a different sentence should be imposed; and
(d) does not require the appellate court to be satisfied that the sentence was unreasonable or plainly unjust.
(8) If the appellate court allows an appeal against sentence under section 254, the court—
(a) must set aside the sentence; and
(b) may impose any sentence which the court considers appropriate and which the Magistrates' Court could have imposed; and
(c) may exercise any power which the Magistrates' Court could have exercised.
(1) The appellate court may backdate a sentence imposed under section 256 or 256B to a date not earlier than the date of the sentence of the Magistrates' Court that was set aside on the appeal.
(2) A sentence imposed under section 256 or 256B is for all purposes to be regarded as a sentence of the appellate court.
Note
See the definition of "sentence "in section 3. This includes the recording of a conviction and an order as to costs.
If, on an appeal under section 254, the appellate court is considering imposing a more severe sentence than that imposed by the Magistrates' Court, the appellate court must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Magistrates' Court.".