What is a Criminal Conviction Appeal?
An appeal in criminal law is the process whereby a higher court reviews a criminal conviction decision made by a lower court.
In a criminal matter, it is possible to file an appeal against:
- The sentence passed by the lower court; or
- Both the conviction and sentence passed by the lower court.
If a person is found guilty in the Magistrates Court, County Court, Supreme Court or Court of Appeals in Victoria, they can apply to appeal the decision.
The general hierarchy of criminal courts in Victoria, from lowest to highest, is:
- Magistrates Court of Victoria
- County Court of Victoria
- Supreme Court of Victoria
- High Court of Australia
Submitting a formal appeal is a complicated process and can potentially result in a higher penalty being imposed if the superior court finds you guilty again.
If you feel as though another firm has let you down in your criminal matter and your decision deserves to be reconsidered, please don’t hesitate to contact our expert team at Sher Criminal Lawyers. Our defence specialists have years of experience appealing cases at all levels of the Victorian Justice System and work hand-in-hand with Senior and Queen’s Counsel. We are devoted to helping you seek the best possible outcome in your matter.
Appealing a Magistrates Court Decision
If you are found guilty of an offence in the Magistrates Court of Victoria, you may seek an appeal against either:
- The sentence (i.e. the penalty imposed); or
- The conviction (i.e. the finding of guilt) and the sentence.
An appeal against a decision from the Magistrates Court to the County Court arises under s254 of the Criminal Procedure Act 2009 (Vic). In certain circumstances, it may also be possible to appeal a Magistrates Court decision directly to the Supreme Court of Victoria.
The prosecution also has the right to appeal against a sentence imposed by the Magistrates Court if they find it unsatisfactory (s255(4)).
Filing an Appeal
To initiate an appeal against a Magistrates Court decision, you must lodge a Notice of Appeal within 28 days. The Notice must be filed with the Registrar of the Magistrates Court.
When filing the appeal, you must sign a statement saying that you understand that the sentence imposed by the County Court may be more severe than the original sentence. You must also sign an undertaking to appear in the County Court on a fixed date.
If you were sentenced to imprisonment originally in the Magistrates Court, it is important to note that an appeal application and a bail application are two separate processes.
Time Frames
In Victoria, a Notice of Appeal must be:
- Filed with the Registrar of the Magistrates Court within 28 days of the original decision; and
- Served on the respondent within 7 days of filing.
If 28 days have already passed since the original decision, applying for an appeal becomes a more complicated process. In this case, you must apply to the County Court for “leave”, or permission, to appeal. A judge in the County Court will consider whether leave should be granted to hear the appeal. The Court will grant leave if it is satisfied that:
- Your failure to file a Notice of Appeal within the required time frame was due to exceptional circumstances; and
- The respondent’s case will not be materially prejudiced because of the delay in filing the appeal.
To prove exceptional circumstances, you will need to provide evidence to the County Court which proves that there were special and substantial reasons for the delay.
The longer the delay in filing the Notice of Appeal, the harder it becomes to satisfy the County Court of exceptional circumstances. In cases that involve significant delays, the Court may only grant leave if it is satisfied that the appeal has reasonable prospects of being successful.
If the accused seeks to appeal their conviction (and not just their sentence), the Court must also consider whether the appeal trial would be fair. An extensive delay may materially prejudice the respondent’s case, because some evidence and witnesses may no longer be available. Further, re-opening the case may significantly impact the wellbeing of the victim.
Should the County Court choose not to grant leave to appeal, the appeal will be struck out. In this case, the original sentence of the Magistrates Court will be enforced upon the appeal being struck out.
Magistrates’ Court Sentence
Filing a Notice of Appeal causes a stay of the original sentence handed down in the Magistrates Court (except in cases where the accused was sentenced to imprisonment). However, the appeal does not cause a stay in the conviction.
If the accused was sentenced to a term of imprisonment in the Magistrates Court, the term can only be stayed if bail is granted.
Further, if the accused has been disqualified from driving, filing a Notice of Appeal does not automatically stay the disqualification. However, in some circumstances, the Magistrates Court may use its discretion to stay the disqualification until the appeal has been resolved.
The County Court Appeal Hearing
When an appeal is heard in the County Court, it is treated as a rehearing of the original proceedings in the Magistrates’ Court. However, the accused is not bound to make the same plea of guilty or not guilty. If they originally pleaded guilty, they have the right to plead not guilty and vice versa.
Because the appeal is a rehearing of the original proceedings, the prosecution carries the burden of proof and must present its case again in its totality.
Either party can present fresh evidence that was not considered during the original trial. Further, either party can change the formulation or theory of its case, should they so choose. These procedural rules are particularly important if Victorian legislation has recently changed because the appeal trial must be determined on the new laws.
During the appeal trial, the County Court Judge must warn the appellant if there is a real possibility that a more severe sentence will be imposed than what was originally imposed in the Magistrate’s Court.
Abandoning an Appeal
The appellant can apply to abandon the appeal at any stage of proceedings. This is done by filing a Notice of Abandonment of Appeal with the Registrar of the County Court. Upon abandonment, the County Court will make an order striking out the appeal.
Abandoning an appeal results in the original Magistrates’ Court sentence being reinstated and enforced.
Cost Orders in Criminal Appeals
Should the County Court dismiss or strike out an appeal, the Court may also make an order for the appellant to pay part or all of the respondent’s costs of the appeal. The County Court may make a cost order if it is satisfied that the appellant:
- Brough the appeal vexatiously;
- Brought the appeal frivolously; or
- The appeal was an abuse of process.
Appealing a County Court or Supreme Court Decision ​
If you have been found guilty of an offence in the County Court or Supreme Court of Victoria, you can seek leave to appeal against that decision in the Court of Appeal. This right arises under pt6.3 of the Criminal Procedure Act 2009 (Vic).
In regard to the original decision, you can seek leave to appeal against either:
- The sentence (i.e. the penalty imposed); or
- The conviction (i.e. the finding of guilt) and the sentence.
There is no guarantee that the Court of Appeal will grant leave to hear your appeal. The Court will have to consider many factors before deciding to either grant or refuse leave.
Filing a Leave Application
Filing a leave application to hear an appeal in the Court of Appeal is a complicated process and requires extensive legal knowledge and experience.
The appellant can commence an application for leave to appeal by filing a Notice of Application for Leave to Appeal within 28 days of the original sentencing. This Notice can be filed with the Registrar of the Court of Appeal and must be submitted in accordance with the rules of the Court. A written case in support of the application must be attached to the Notice.
Time Frames
In Victoria, a Notice of Application for Leave to Appeal must be filed with the Registrar of the Court of Appeal within 28 days of the original decision.
If 28 days have already passed since the original decision, applying for leave to appeal becomes a more complicated process. In this case, you must file an affidavit in support of the Notice, seeking an extension of time. There is no guarantee that the Court of Appeal will grant a leave application that is submitted after 28 days.
The Court of Appeal may grant leave if it is satisfied that there were exceptional circumstances that lead to a delay in filing the Notice. To prove exceptional circumstances, you will need to provide evidence to the County Court which demonstrates that there were special and substantial reasons for the delay.
The longer the delay in filing the Notice of Appeal, the harder it becomes to satisfy the Court of exceptional circumstances. In cases that involve significant delays, the Court may only grant leave if it is satisfied that the appeal has reasonable prospects of being successful.
County or Supreme Court’s Sentence
Filing a Notice of Application for Leave to Appeal does not automatically stay the original sentence of the County or Supreme Court.
The original sentence will only be stayed if the Court of Appeal believes that it is in the interest of justice to do so.
The only original orders that will be automatically stayed are those that relate to financial restitution and compensation payments (unless otherwise directed by the Court of Appeal). Further, orders pertaining to the forfeiture or destruction of property orders cannot be enforced until the finalisation of the appeal.
Appeals Against Conviction in the Court of Appeals
The Court of Appeal can only grant leave to appeal a conviction under certain circumstances, including if:
- The verdict of the jury is unreasonable or cannot be supported having regard to the evidence;
- As the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
- For any other reason there has been a substantial miscarriage of justice.
Even if the accused originally pleaded guilty in the County or Supreme Court, an appeal can still be made against a conviction. However, the accused would be required to demonstrate exceptional circumstances exist as to why the County Court should grant leave to appeal.
If the Court of Appeal allows an appeal, it must set aside the original conviction and either:
- Order a new trial;
- Enter a judgement of acquittal; or
- Consider other offences that the accused could be found guilty of.
The Court may order a new trial if it concludes that there is still sufficient evidence for a jury to convict the accused of the original offence.
However, before ordering a new trial, the Court must also consider the interests of the community and the appellant. The Court may decide against a new trial under certain circumstances that would unduly burden the justice system, the community, the victim or the appellant.
Appeals Against Sentence in the Court of Appeals
In circumstances where the accused wishes only to appeal the sentence of the County or Supreme Court, leave must still be sought. It is not possible to appeal against a sentence that is mandated by law.
In Victoria, the following types of sentences can be appealed:
- Recording of a criminal conviction;
- Custodial orders;
- Community correction orders;
- Fines;
- Other penalties legislated in the Sentencing Act 1991 (Vic);
- Sex offender registration orders;
- Orders regarding the impoundment, immobilisation or forfeiture of a vehicle;
- Penalties legislated under the Children, Youth and Families Act 2005 (Vic).
The Court of Appeal generally only grants leave to appeal against a sentence if there are reasonable prospects that the new sentence imposed would be different from the original sentence.
Appeals to the High Court of Australia
If you have been found guilty of an offence upon appeal in the Court of Appeals, you may be able to seek leave to appeal to the High Court of Australia.
Appealing to the High Court of Australia is a highly complex process that requires the highest calibre of legal knowledge and experience.
An appeal can only be brought to the High Court of Australia under rigid circumstances including if:
- A case involves interpretation of the Constitution;
- The High Court has to examine one of its previous decisions;
- The High Court considers a case to involve a principle of law that is of major public importance.
Although High Court appeals are extremely complicated, it may be beneficial to consider the merits of your case.
Your right to appeal a criminal conviction in Victoria
Appeal matters are highly complex. There are many rules and regulations in regard to initiating an appeal. In the superior courts, there is no guarantee that you will be granted leave to appeal a conviction or sentence unless you can prove that certain circumstances exist. Further, there is always a possibility that the sentence imposed by the superior court will be more severe than the original sentence.
If you wish to appeal a court decision, it is vital that you obtain advice and representation from a criminal lawyer who is extensively experienced in appeal matters. An appeals expert will understand the different rules, regulations and requirement that must be met to successfully lodge and run an appeal in each Victorian court.
Sher Criminal Lawyers specialises in criminal appeals. We have advised and represented clients in appeal matters at all levels of the Victorian Justice System.
If you wish to appeal your court decision, please contact us immediately. Appeals must be lodged within a set time frame. The earlier we are contacted, the more time we have to prepare your appeal application.
Our specialist appeal lawyers are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
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