Have you received a criminal conviction, or sentence that you believe is unfair, unjust, or erroneous? Fortunately, you may have grounds to lodge an appeal.
In Victoria, a person who has been convicted and sentenced in the Supreme Court, County Court or Magistrates Court is able to appeal against their conviction, sentence, or both. In most cases, the affected person requires the Court’s permission to have these appeals heard. This is known as leave to appeal. This article will detail all the crucial steps that must be followed for an appeal to be filed successfully.
Filing for an Appeal from the Supreme Court and County Court
Considering Time Limits
There are strict time limits in place for individuals seeking to lodge an appeal. For an appeal against a conviction or sentence, a person has 28 days from the date of the sentence to start the appeal.
Whilst the time limit is enforced, if you are applying for an appeal outside of the specified period you must apply for an extension of time. This requires an additional application to be filed, including a Form 6-2H Notice of application for extension of time (which includes the grounds on which the extension application is made) and an affidavit stating the reasons for filing late. After the Court registry has accepted these documents, the Registrar of the Court of Appeal will serve them on the respondent.
Appeal against Conviction (1st appeal process)
For a defendants first application for appeal, they must first seek leave to appeal. This process can be complicated, as they must file several documents with the court registry. These include a Form 6-2A Notice of application for leave to appeal against conviction, which includes the grounds of the appeal (for example, you believe there has been an error in the law, or the conviction is erroneous in some way). Additionally, a written case of no more than 10-pages must be submitted for consideration. Accompanying this must be a list of authorities and materials relied upon to support the appeal. Moreover, if you believe that the conviction is unreasonable or cannot be substantiated by the evidence, you must include a schedule of the relevant evidence and transcript references from the trial referable to the evidence.
Appeal against conviction (2nd appeal process)
If you have previously appealed against your conviction to the Court of Appeal, you may be able to make a subsequent appeal if you have fresh or compelling evidence that should, in the interests of justice, be considered on an appeal. Section 326C of the Criminal Procedure Act 2009 stipulates when evidence is considered ‘fresh’ and ‘compelling’. Pursuant to this section, ‘fresh’ evidence is evidence that was not adduced at the trial of the offence; and it could not, even with the exercise of reasonable diligence, have been adduced at the trial. Moreover, in accordance with this section, ‘compelling’ evidence is evidence that is ‘reliable’ and ‘substantial’, and either is ‘highly probative in the context of the issues in dispute at the trial of the offence’, or ‘would have eliminated or substantially weakened the prosecution case if it has been presented at trial’. Essentially, the new evidence must be incredibly important and critical to the outcome and sentence of the first trial.
The same steps described for the 1st appeal process must be followed for a subsequent appeal to successfully filed.
Appeal against sentence
To apply for leave to appeal against your sentence you must file several documents with the court registry. These include a Form 6-2B Notice of application for leave to appeal against sentence, which includes the grounds of appeal. Additionally, you must include a written case of no more than 10-pages, as well as a list of authorities and materials relied on to support the appeal.
Filing for an Appeal from the Magistrates Court
Appeal against a decision: conviction or sentence appeal
Convictions and sentences made in the Magistrates Court can also be appealed to the County Court. However, the process is slightly different. To start the appeal process, a Notice of Appeal must be filed with the Magistrates Court registry within 28 days of the date of the decision. The same process described above applies if you apply outside of the 28-day period, where an applicant must outline exceptional circumstances as to why you did not appeal in time. The registrar at the Magistrates’ Court will give you the date for the County Court appeal hearing when you lodge the notice of appeal.
If the appeal is made against a sentence of imprisonment, an application for bail can be made at the same time as the appeal. This is known as appeal bail. It is important to note that when you appeal, most of the magistrates orders are stayed until the appeal is heard. This means that the orders (for example, that you are to pay a fine, or follow a community corrections order) are put on hold until the appeal is considered.
Appealing decisions can be stressful and time-consuming. If you are planning on lodging an appeal against a conviction or sentence, it is important that you obtain representation from experienced and knowledgeable criminal lawyers, such as Galbally Parker, who are experts in Appeal law.
