CRIMINAL LAW MATTER APPEALS FROM THE LOCAL COURT

TO THE DISTRICT COURT

A person convicted or sentenced by a magistrate has a right to appeal the decision to the District Court.

An appeal:

• must be lodged within 28 days after the sentence has been imposed (or with leave of the court within 3 months)
• with respect to sentence, is by way of rehearing the evidence given before the magistrate, although fresh evidence may be called instead of or in addition to that evidence
• with respect to conviction, is by way of rehearing on the basis of the transcript of evidence given before the magistrate, although fresh evidence may be given but only with the leave of the court.

A prosecutor has a right of appeal against sentence for indictable offences that have been dealt with summarily or summary offences that have been prosecuted by or on behalf of the DPP.

The District Court may determine an appeal against conviction by:

• setting aside the conviction;
• dismissing the appeal;
• where the defendant is granted leave by the District Court to appeal against a conviction entered by the Local Court in his or her absence, set aside the conviction and remit the matter back to be re-determined by the Local Court.

The District Court may determine an appeal against sentence by:

• setting aside the sentence;
• varying the sentence; or
• dismissing the appeal.

TO THE SUPREME COURT

A person convicted or sentenced by a magistrate may appeal to the Supreme Court:

• against conviction or sentence, but only on a ground that involves a question of law;
• against conviction or sentence on a ground that involves:
• a question of fact; or
• a question of mixed law and fact, but only by leave of the Supreme Court.

A prosecutor may appeal to the Supreme Court against:

• a sentence in any summary proceedings;
• an order dismissing or staying a matter the subject of summary proceedings; or
• an order for costs made against a prosecutor in summary or committal proceedings.

In the above circumstances, the appeal can only be on a ground that involves a question of law. Please note the exception regarding orders or sentences in relation to an “environmental offence”.

The Supreme Court may determine an appeal against conviction by:

• setting aside the conviction;
• setting aside the conviction and remitting the matter to the magistrate for redetermination in accordance with the Supreme Court’s directions; or
• dismissing the appeal.

The Supreme Court may determine an appeal against sentence by:

• setting aside the sentence;
• varying the sentence,
• setting aside the sentence and remitting the matter to the magistrate for redetermination in accordance with the Supreme Court’s directions; or
• dismissing the appeal.

There are certain provisions of law allow a party to appeal to the District or Supreme Courts against orders made by a magistrate that are not in the nature of a conviction or sentence. Additionally, there are provisions permitting appeals to the Land and Environment Court from a magistrate’s decisions concerning an environmental offence.

About Post Author

Mark Racca

Principal Solicitor & Director
LLB, GradDipLegPrac, MPA

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