Victorian Numbered Acts

JUSTICE LEGISLATION AMENDMENT (CRIMINAL APPEALS) ACT 2019 (NO. 44 OF 2019) - SECT 25

After section 266 of the Criminal Procedure Act 2009 insert —

        " 266A     Failure to file summary of appeal notice means appeal or application is abandoned and may be struck out

    (1)     If an appellant or applicant fails to file a summary of appeal notice within the period specified in section 255A(1)—

        (a)     the appeal or application is taken to be abandoned; and

        (b)     the appellate court, or the registrar of the County Court or the Prothonotary (as the case requires), may strike out the appeal or application.

    (2)     If—

        (a)     an appeal or application for leave is struck out under subsection (1); and

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

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

    (3)     If an appeal or application for leave to appeal is struck out under subsection (1)—

        (a)     the sentence of the Magistrates' Court is reinstated and may be enforced as if an appeal or application 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

        (b)     the registrar of the County Court or the Prothonotary, 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 or application; and

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

    (4)     The appellate court, at any time, may set aside an order striking out an appeal or application for leave to appeal because of the failure of the appellant or applicant to file a summary of appeal notice, if the appellant or applicant satisfies the court that the failure was not due to fault or neglect on the part of the appellant or applicant.

    (5)     An application under subsection (4) to set aside an order may be made at any time by notice in writing to the respondent served a reasonable time before the making of the application.

    (6)     Notice under subsection (5) must be served in the same way as a notice of appeal or application for leave to appeal.

    (7)     If the appellate court grants an application under subsection (4), the court—

        (a)     must order the reinstatement of the appeal or application for leave to appeal subject to the payment of any costs that the court considers appropriate; and

        (b)     may require the appellant or applicant to give a further undertaking to proceed with the appeal or application.

    (8)     An application under section 265 for bail pending the reinstated appeal or application may be made to the appellate court.

    (9)     On the reinstatement of an appeal or application, the appeal or application operates as a stay of the sentence (but not a conviction in respect of the sentence) when—

        (a)     if required, the appellant or applicant signs the undertaking referred to in subsection (7)(b); and

        (b)     if the appellant or applicant is in custody because of the sentence appealed against and bail is granted under section 265, the appellant enters bail.

    (10)     Subsection (9) is subject to section 29 of the Road Safety Act 1986 .".