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New South Wales
Crimes (Local Courts Appeal and
Review) Bill 2001
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
Part 2 Local Court review of Local Court decisions
4 Applications to Local Court 5
5 Applications to Minister 5
6 Notice of applications 6
7 Procedure for dealing with applications 6
8 Circumstances in which applications to be granted 6
9 Procedure after decision on application 7
10 Effect of annulment of conviction or sentence 7
Crimes (Local Courts Appeal and Review) Bill 2001
Contents
Page
Part 3 Appeals from Local Court to District Court
Division 1 Appeals by defendants
Subdivision 1 Making of appeals
11 Appeals as of right 8
12 Appeals requiring leave 8
13 Late applications for leave to appeal 9
14 Lodgment of appeals and applications for leave to appeal 9
15 Documents to be forwarded to prosecutor and relevant
court registrars 10
Subdivision 2 Determination of appeals
16 Determination of applications for leave to appeal 10
17 Appeals against sentence to be by way of rehearing of
evidence 10
18 Appeals against conviction to be by way of rehearing on
the transcripts of evidence 11
19 Circumstances in which evidence to be given in person 11
20 Determination of appeals 12
21 Notice of dismissal of appeal or application for leave to
appeal 12
22 Revocation of orders dismissing appeals and applications
for leave to appeal 12
Division 2 Appeals by prosecutors
Subdivision 1 Making of appeals
23 Appeals as of right 13
24 Lodgment of appeals 14
25 Documents to be forwarded to defendant and relevant
court registrars 14
Subdivision 2 Determination of appeals
26 Appeals against sentence to be by way of rehearing of
evidence 15
27 Determination of appeals 15
Contents page 2
Crimes (Local Courts Appeal and Review) Bill 2001
Contents
Page
Division 3 Miscellaneous
28 Miscellaneous powers 15
29 Limits on appeals 16
30 Rules of court 16
Part 4 Appeals from Local Court to Land and Environment
Court
Division 1 Appeals by defendants
Subdivision 1 Making of appeals
31 Appeals as of right 17
32 Appeals requiring leave 17
33 Late applications for leave to appeal 18
34 Lodgment of appeals and applications for leave to appeal 19
35 Documents to be forwarded to prosecutor and relevant
court registrars 19
Subdivision 2 Determination of appeals
36 Determination of applications for leave to appeal 20
37 Appeals to be by way of rehearing on the transcripts of
evidence 20
38 Circumstances in which evidence to be given in person 20
39 Determination of appeals 21
40 Notice of dismissal of appeal or application for leave to
appeal 22
41 Revocation of orders dismissing appeals and applications
for leave to appeal 22
Division 2 Appeals by prosecutors
Subdivision 1 Making of appeals
42 Appeals as of right 23
43 Appeals requiring leave 23
44 Lodgment of appeals and applications for leave to appeal 24
45 Documents to be forwarded to defendant and relevant
court registrars 24
Contents page 3
Crimes (Local Courts Appeal and Review) Bill 2001
Contents
Page
Subdivision 2 Determination of appeals
46 Determination of applications for leave to appeal 24
47 Appeals against sentence to be by way of rehearing of
evidence 25
48 Determination of appeals 25
Division 3 Miscellaneous
49 Miscellaneous powers 25
50 Limits on appeals 26
51 Rules of court 26
Part 5 Appeals from Local Court to Supreme Court
Division 1 Appeals by defendants
Subdivision 1 Making of appeals
52 Appeals as of right 27
53 Appeals requiring leave 27
Subdivision 2 Determination of appeals
54 Determination of applications for leave to appeal 28
55 Determination of appeals 28
Division 2 Appeals by prosecutors
Subdivision 1 Making of appeals
56 Appeals as of right 29
57 Appeals requiring leave 30
Subdivision 2 Determination of appeals
58 Determination of applications for leave to appeal 30
59 Determination of appeals 30
Contents page 4
Crimes (Local Courts Appeal and Review) Bill 2001
Contents
Page
Division 3 Miscellaneous
60 Limits on appeals 31
61 Rules of court 31
Part 6 Provisions common to all appeals
62 Effect of defect in notice of appeal or application for leave
to appeal 32
63 Stay of execution of sentence pending determination of
appeal 32
64 Extension of appeal proceedings to other convictions and
sentences 33
65 Appeal not to succeed on narrow technical grounds 33
66 Unavailability of original Magistrate 34
67 Withdrawal of appeals and applications 34
68 Court may confirm or vary conviction or sentence with
effect from earlier day 34
69 Effect on good behaviour bonds of confirmation of
sentence 35
70 Limit on costs awarded against public prosecutor 35
71 Variation of sentences of Local Court 36
72 Orders for costs 36
73 Evidence of setting aside of conviction or sentence 36
Part 7 Miscellaneous
74 Applications and appeals in relation to children 37
75 Prerogative of mercy preserved 37
76 Attorney General may exercise functions of Director of
Public Prosecutions 37
77 Act not to apply to Magistrate's ministerial functions 37
78 Bail Act 1978 to prevail 38
79 Regulations 38
80 Savings, transitional and other provisions 38
81 Review of Act 38
Schedule 1 Savings, transitional and other provisions 39
Contents page 5
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2001
New South Wales
Crimes (Local Courts Appeal and
Review) Bill 2001
Act No , 2001
An Act to restate the law with respect to appeals and other forms of review in
relation to criminal proceedings in Local Courts and other courts of comparable
jurisdiction; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Crimes (Local Courts Appeal and Review) Bill 2001
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Crimes (Local Courts Appeal and Review) Act 2001.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Definitions
(1) In this Act:
appeal court means the court to which an appeal or application for
leave to appeal may be made under Part 3, 4 or 5.
appellant, in relation to proceedings on an application for leave to
appeal, includes the applicant in those proceedings.
defendant, in relation to proceedings from which an appeal or
application for leave to appeal is made, means the person against
whom those proceedings have been taken.
environmental offence means an offence for which summary
proceedings may be taken before the Land and Environment Court,
whether or not summary proceedings for such an offence may also be
taken before any other court, and includes any offence arising under
the environment protection legislation within the meaning of the
Protection of the Environment Administration Act 1991.
exercise a function includes perform a duty.
fresh evidence, in relation to appeal proceedings, means evidence in
addition to or in substitution for the evidence given in the proceedings
from which the appeal proceedings have arisen.
function includes a power, authority or duty.
Local Court includes:
(a) a Children's Court constituted under the Children's Court
Act 1987, and
(b) a Warden's Court constituted under the Mining Act 1992, and
(c) a Licensing Court constituted under the Liquor Act 1982, and
Page 2
Crimes (Local Courts Appeal and Review) Bill 2001 Clause 3
Preliminary Part 1
(d) any court that is constituted by a Magistrate and that exercises
criminal jurisdiction, and
(e) any Magistrate or court that exercises any function or
jurisdiction under Chapter 3 (Part 3 excepted), Chapter 4
(Part 5 excepted) or Chapter 5 of the Criminal Procedure
Act 1986.
original Local Court, in relation to proceedings under this Act, means
the Local Court that made or imposed the conviction, sentence or order
from which those proceedings arise.
prosecutor, in relation to proceedings from which an appeal or
application for leave to appeal is made, means the person responsible
for the conduct of the prosecution in those proceedings.
public authority means:
(a) the Crown, or
(b) an authority within the meaning of the Public Finance and
Audit Act 1983, or
(c) an officer or employee of such an authority acting in the course
of his or her employment.
sentence means:
(a) any order made by a Local Court in respect of a person as a
consequence of its having convicted the person of an offence,
including:
(i) any sentence of imprisonment (including any sentence
of imprisonment the subject of a periodic detention
order or home detention order), and
(ii) any community service order, good behaviour bond or
fine, and
(iii) any order suspending execution of a sentence of
imprisonment under section 12 of the Crimes
(Sentencing Procedure) Act 1999, and
(iv) any direction for compensation under section 71 or 77B
of the Victims Support and Rehabilitation Act 1996, and
(v) any order or direction with respect to restitution,
compensation, forfeiture, destruction, disqualification or
loss or suspension of a licence or privilege, or
(b) any order made by a Local Court in respect of a person under
section 10 or 11 of the Crimes (Sentencing Procedure)
Act 1999 on finding the person guilty of an offence, or
Page 3
Clause 3 Crimes (Local Courts Appeal and Review) Bill 2001
Part 1 Preliminary
(c) any order for restitution made by a Local Court in respect of a
person under section 43 of the Criminal Procedure Act 1986,
or
(d) any order for costs made by a Magistrate against a person in
connection with committal proceedings taken against the
person, or
(e) any order for costs made by a Local Court against a person in
connection with summary proceedings taken against the person.
(2) In the case of an application or appeal in relation to a decision of the
Children's Court under Part 3 of the Children (Criminal Proceedings)
Act 1987:
(a) a reference in this Act to a conviction includes a reference to a
finding of guilt under that Act, and
(b) a reference in this Act to a sentence includes a reference to an
order made on the finding of guilt under that Act.
(3) In this Act, a reference to varying a sentence includes:
(a) a reference to varying the severity of the sentence, and
(b) a reference to setting aside the sentence and imposing some
other sentence of a more or less severe nature.
(4) For the purposes of this Act, it is to be presumed that the following
sentences descend in order of severity as follows, namely, full-time
imprisonment, periodic detention, home detention, suspended sentence
of imprisonment, community service work, good behaviour bond, fine.
Page 4
Crimes (Local Courts Appeal and Review) Bill 2001 Clause 4
ocal Court review of Local Court decisions Part 2
Part 2 Local Court review of Local Court decisions
4 Applications to Local Court
(1) An application for annulment of a conviction or sentence made or
imposed by a Local Court may be made to the same Local Court:
(a) by the defendant, or
(b) by the prosecutor,
but may be made by the defendant only if the defendant was not in
appearance before the Local Court when the conviction or sentence
was made or imposed.
(2) An application under this section must be made:
(a) within 2 years after the relevant conviction or sentence is made
or imposed, or
(b) if an application has been made to the Minister under section 5
within that 2-year period, within 2 years after the application
under section 5 has been disposed of under this Part.
(3) Except by leave of the Local Court, a person may not make more than
one application under this section in relation to the same matter.
(4) An application must be in writing, and must be lodged with a registrar
of a Local Court.
(5) If an application is lodged with a registrar of a Local Court other than
the original Local Court, the registrar with whom the application is
lodged must forward the application to the registrar of the original
Local Court.
5 Applications to Minister
(1) An application for annulment of a conviction or sentence made or
imposed by a Local Court may be made to the Minister by any person.
(2) If satisfied that a question or doubt exists:
(a) as to the defendant's guilt, or
(b) as to the defendant's liability for a penalty,
the Minister may refer the application to the original Local Court.
Page 5
Clause 6 Crimes (Local Courts Appeal and Review) Bill 2001
Part 2 Local Court review of Local Court decisions
6 Notice of applications
(1) As soon as practicable after receiving an application for annulment, the
registrar of the original Local Court must notify the applicant and other
interested parties of the date, time and place fixed for dealing with the
application.
(2) A Local Court may deal with an application for annulment, despite any
omission or error in the notice or despite the notice having not been
served on an interested party, if it is satisfied that the party:
(a) is aware of the date, time and place fixed for dealing with the
application and has not been prejudiced as a consequence of the
notice having not been served, or
(b) is avoiding service of the notice or cannot, after reasonable
search and inquiry, be found.
7 Procedure for dealing with applications
(1) A Local Court may deal with an application for annulment in the
presence or absence of the parties and in open court or in private.
(2) A Local Court dealing with an application for annulment may stay the
execution of the sentence concerned subject to such terms and
conditions as it thinks fit.
(3) The rules of court made under the Local Courts Act 1982 may make
provision for or with respect to procedure and evidence for the
purposes of the hearing of applications for annulment.
8 Circumstances in which applications to be granted
(1) A Local Court must grant an application for annulment made by the
prosecutor if it is satisfied that, having regard to the circumstances of
the case, there is just cause for doing so.
(2) A Local Court must grant an application for annulment made by the
defendant if it is satisfied:
(a) that the defendant was not aware of the original Local Court
proceedings until after the proceedings were completed, or
(b) that the defendant was otherwise hindered by accident, illness,
misadventure or other cause from taking action in relation to
the original Local Court proceedings, or
(c) that, having regard to the circumstances of the case, it is in the
interests of justice to do so.
Page 6
Crimes (Local Courts Appeal and Review) Bill 2001 Clause 9
ocal Court review of Local Court decisions Part 2
9 Procedure after decision on application
(1) A Local Court must notify each of the interested parties of its decision
as to an application for annulment.
(2) If its decision is to annul the relevant conviction or sentence, the Local
Court:
(a) must deal with the original matter afresh (either immediately or
at a later date), and
(b) unless it does so immediately, must notify each of the
interested parties of the date, time and place fixed for dealing
with the original matter.
(3) The Local Court is to deal with the original matter as if no conviction
or sentence had been previously made or imposed.
(4) The original matter need not be dealt with by the Magistrate who
ordered the annulment of the conviction or sentence, but may be dealt
with by any Magistrate, including the Magistrate by whom the matter
was dealt with in the original Local Court proceedings.
(5) In this section, original matter, in relation to a conviction or sentence
that has been annulled, means the matter the subject of the
proceedings from which the conviction or sentence arose.
10 Effect of annulment of conviction or sentence
(1) On being annulled, a conviction or sentence ceases to have effect and
any enforcement action previously taken is to be reversed.
(2) The annulment of a conviction for an offence that has been heard
together with another offence for which a conviction has been made
does not prejudice the conviction for the other offence.
(3) If a fine is annulled, any amount paid towards the fine is repayable to
the person by whom it was paid.
(4) The Consolidated Fund is appropriated to the extent necessary to give
effect to subsection (3).
Page 7
Clause 11 Crimes (Local Courts Appeal and Review) Bill 2001
Part 3 Appeals from Local Court to District Court
Division 1 Appeals by defendants
Part 3 Appeals from Local Court to District Court
Division 1 Appeals by defendants
Subdivision 1 Making of appeals
11 Appeals as of right
(1) Any person who has been convicted or sentenced by a Local Court
may appeal to the District Court against the conviction or sentence,
except in the case of a person who has been convicted in the person's
absence or following the person's plea of guilty.
(2) An appeal must be made:
(a) within 28 days after sentence is imposed, or
(b) if an application for annulment of the conviction or sentence
has been made under Part 2 within that 28-day period, within
28 days after the Part 2 application is disposed of under that
Part,
but (in the case of an appeal against a conviction) may not be made
before sentence is imposed.
12 Appeals requiring leave
(1) Any person who has been convicted by a Local Court in the person's
absence or following the person's plea of guilty may appeal to the
District Court against the conviction, but only by leave of the District
Court.
(2) An application for leave to appeal may not be made in relation to a
conviction in respect of which the defendant:
(a) is entitled to make an application under section 4 but has not
done so, or
(b) has made an application under section 4 but the application has
not been disposed of under Part 2.
(3) An application for leave to appeal must be made:
(a) within 28 days after (but not before) the sentence imposed after
the relevant conviction is made, or
Page 8
Crimes (Local Courts Appeal and Review) Bill 2001 Clause 12
Appeals from Local Court to District Court Part 3
Appeals by defendants Division 1
(b) if an application for annulment of the conviction has been made
under Part 2 within that 28-day period, within 28 days after the
Part 2 application is disposed of under that Part.
13 Late applications for leave to appeal
(1) An appeal to the District Court may be made:
(a) by any person by whom an appeal could be made under
section 11, but for section 11 (2), and
(b) by any person by whom an application for leave to appeal
could be made under section 12, but for section 12 (3),
but only by leave of the District Court.
(2) An application for leave to appeal must be made within 3 months after
the relevant conviction or sentence is made or imposed.
14 Lodgment of appeals and applications for leave to appeal
(1) An appeal under section 11 is to be made by lodging a written notice
of appeal with:
(a) the registrar of any Local Court, or
(b) the person in charge of the place where the appellant is in
custody.
(2) A notice of appeal must state the general grounds of appeal.
(3) An application for leave to appeal under section 12 or 13 is to be made
by lodging a written application for leave to appeal, together with a
written notice of appeal, with:
(a) the registrar of any Local Court, or
(b) the person in charge of the place where the appellant is in
custody.
(4) An application for leave to appeal must state the general grounds of the
application and, in the case of an application under section 13, must
state the reasons why an appeal or application for leave to appeal was
not made within the time allowed by section 11 or 12, as the case may
be.
(5) On the granting of leave to appeal, an appeal is taken to have been
made in accordance with the written notice of appeal referred to in
subsection (3).
Page 9
Clause 15 Crimes (Local Courts Appeal and Review) Bill 2001
Part 3 Appeals from Local Court to District Court
Division 1 Appeals by defendants
15 Documents to be forwarded to prosecutor and relevant court registrars
(1) The person with whom a notice of appeal or application for leave to
appeal is lodged must immediately forward a copy of it to:
(a) the prosecutor in the original Local Court proceedings, and
(b) the registrar of the original Local Court, if the person is not that
registrar, and
(c) the Director of Public Prosecutions.
(2) As soon as practicable after receiving a notice of appeal or application
for leave to appeal, the registrar of the original Local Court must send
the relevant papers (including a copy of any relevant order or
conviction made by the Local Court) to a registrar of the District
Court.
Subdivision 2 Determination of appeals
16 Determination of applications for leave to appeal
(1) The District Court may determine an application for leave to appeal by
dismissing the application or by granting leave to appeal.
(2) Leave to appeal must not be granted in relation to an application under
section 13 unless the District Court is satisfied that it is in the interests
of justice that leave be granted.
(3) If the District Court dismisses an application for leave to appeal, it may
make such order as to the costs to be paid by the appellant as it thinks
just.
(4) If the District Court grants leave to appeal, it may proceed to hear the
appeal immediately or it may adjourn the appeal proceedings.
17 Appeals against sentence to be by way of rehearing of evidence
An appeal against sentence is to be by way of a rehearing of the
evidence given in the original Local Court proceedings, although fresh
evidence may be given in the appeal proceedings.
Page 10
Crimes (Local Courts Appeal and Review) Bill 2001 Clause 18
Appeals from Local Court to District Court Part 3
Appeals by defendants Division 1
18 Appeals against conviction to be by way of rehearing on the transcripts
of evidence
(1) An appeal against conviction is to be by way of rehearing on the basis
of certified transcripts of evidence given in the original Local Court
proceedings, except as provided by section 19.
(2) Fresh evidence may be given, but only by leave of the District Court
which may be granted only if the Court is satisfied that it is in the
interests of justice that the fresh evidence be given.
(3) The parties to an appeal are each entitled to be provided with one free
copy of the certified transcripts of evidence relevant to the appeal and,
if fresh evidence is given, one free copy of the transcript of the fresh
evidence.
19 Circumstances in which evidence to be given in person
(1) The District Court may direct a person to attend and give evidence in
proceedings on an appeal against conviction if it is satisfied:
(a) in the case of an appeal that relates to an offence involving
violence against that person, that there are special reasons why,
in the interests of justice, the person should attend and give
evidence, or
(b) in any other case, that there are substantial reasons why, in the
interests of justice, the person should attend and give evidence.
(2) An application for such a direction may be made by a party to the
proceedings in relation to a particular person only if notice of the
party's intention to make such an application has been served on each
other party to the proceedings within such period as the District Court
may direct.
(3) If an application for such a direction is refused, the District Court must
give reasons for the refusal.
(4) A direction may be withdrawn only on the application, or with the
consent, of the appellant.
(5) The regulations may make provision for or with respect to the
determination of special or substantial reasons for the purposes of
subsection (1).
Page 11
Clause 19 Crimes (Local Courts Appeal and Review) Bill 2001
Part 3 Appeals from Local Court to District Court
Division 1 Appeals by defendants
(6) Without limiting subsection (5), in determining whether special or
substantial reasons exist, the District Court must have regard to
whether or not the appellant was legally represented for the whole or
any part of the original Local Court proceedings.
20 Determination of appeals
(1) The District Court may determine an appeal against conviction:
(a) by setting aside the conviction, or
(b) by dismissing the appeal.
(2) The District Court may determine an appeal against sentence:
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.
21 Notice of dismissal of appeal or application for leave to appeal
(1) If an appeal or application for leave to appeal is dismissed because of
the appellant's failure to appear, the registrar of the District Court for
the proclaimed place (within the meaning of the District Court
Act 1973) at which the appeal or application is dismissed must cause
notice of that fact to be served on the appellant.
(2) Such a notice must state the following:
(a) that the District Court has dismissed the appeal or application,
(b) that the appellant is entitled to apply for the setting aside of the
order by which the order dismissing the appeal or application
was made,
(c) that any such application must be made within 12 months after
the date on which the order dismissing the appeal or application
was made.
22 Revocation of orders dismissing appeals and applications for leave to
appeal
(1) An application may be made to the District Court for the setting aside
of an order under section 21 that has dismissed an appeal or
application for leave to appeal because of the appellant's failure to
appear (a dismissal order).
Page 12
Crimes (Local Courts Appeal and Review) Bill 2001 Clause 22
Appeals from Local Court to District Court Part 3
Appeals by defendants Division 1
(2) An application under this section must be made within 12 months after
the date on which the dismissal order is made.
(3) After hearing such an application, the District Court may set aside the
dismissal order, either unconditionally or subject to conditions, if it is
satisfied:
(a) that the appellant has shown sufficient cause for the failure to
appear, and
(b) that it is in the interests of justice that the appeal or application
be heard.
(4) Section 60 applies to any sentence in respect of which a dismissal
order is set aside.
(5) No action lies against any person for anything done or omitted to be
done by the person in good faith, and without notice of the setting
aside of a dismissal order, for the purpose of enforcing the conviction
or sentence the subject of the appeal to which the order relates.
Division 2 Appeals by prosecutors
Subdivision 1 Making of appeals
23 Appeals as of right
(1) The Director of Public Prosecutions may appeal to the District Court
against a sentence imposed on a person by a Local Court in any of the
following proceedings:
(a) proceedings for any indictable offence that has been dealt with
summarily,
(b) proceedings for any prescribed summary offence (within the
meaning of the Director of Public Prosecutions Act 1986),
(c) proceedings for any summary offence that has been prosecuted
by or on behalf of the Director of Public Prosecutions.
Page 13
Clause 23 Crimes (Local Courts Appeal and Review) Bill 2001
Part 3 Appeals from Local Court to District Court
Division 2 Appeals by prosecutors
(2) The prosecutor may appeal to the District Court against:
(a) any order for costs made by a Magistrate against the prosecutor
in respect of committal proceedings taken by the prosecutor, or
(b) any order for costs made by a Local Court against the
prosecutor in respect of summary proceedings taken by the
prosecutor.
(3) An appeal must be made within 28 days after the relevant sentence is
imposed.
(4) Despite subsection (3), an appeal may be lodged more than 28 days
after the relevant sentence is imposed if:
(a) the sentence has been reduced on the defendant's undertaking
to assist law enforcement authorities (as referred to in
section 23 of the Crimes (Sentencing Procedure) Act 1999),
and
(b) the defendant has failed, whether wholly or partly, to fulfil the
undertaking.
24 Lodgment of appeals
(1) An appeal under section 23 is to be made by lodging a written notice
of appeal with the registrar of any Local Court.
(2) A notice of appeal must state the general grounds of appeal.
25 Documents to be forwarded to defendant and relevant court registrars
(1) The person with whom a notice of appeal is lodged must immediately
forward a copy of it to:
(a) the defendant in the original Local Court proceedings, and
(b) the registrar of the original Local Court, if the person is not that
registrar.
(2) As soon as practicable after receiving a notice of appeal, the registrar
of the original Local Court must send the relevant papers (including a
copy of any relevant order or conviction made by the Local Court) to
a registrar of the District Court.
Page 14
Crimes (Local Courts Appeal and Review) Bill 2001 Clause 26
Appeals from Local Court to District Court Part 3
Appeals by prosecutors Division 2
Subdivision 2 Determination of appeals
26 Appeals against sentence to be by way of rehearing of evidence
(1) An appeal against sentence is to be by way of a rehearing of the
evidence given in the original Local Court proceedings, although fresh
evidence may be given in the appeal proceedings, but only by leave of
the District Court.
(2) Leave to give fresh evidence may be granted to the Director of Public
Prosecutions only in exceptional circumstances.
27 Determination of appeals
(1) The District Court may determine an appeal against sentence:
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.
(2) The District Court may determine an appeal against an order referred
to in section 23 (2):
(a) by setting aside the order and making such other order as it
thinks just, or
(b) by dismissing the appeal.
Division 3 Miscellaneous
28 Miscellaneous powers
(1) Without limiting its other powers, the District Court may do any one
or more of the following:
(a) it may specify the proclaimed place (within the meaning of the
District Court Act 1973) at which the hearing of an appeal or
application for leave to appeal is to be heard or continued,
(b) it may specify the sitting at which the hearing of an appeal or
application for leave to appeal is to be heard or continued,
(c) it may adjourn the hearing of an appeal or application for leave
to appeal.
Page 15
Clause 28 Crimes (Local Courts Appeal and Review) Bill 2001
Part 3 Appeals from Local Court to District Court
Division 3 Miscellaneous
(2) In determining an appeal, the District Court may exercise any function
that the original Local Court could have exercised in the original Local
Court proceedings.
(3) Subject to section 70, the District Court may make such order as to the
costs to be paid by either party (including the Crown) as it thinks just.
29 Limits on appeals
(1) No appeal may be made to the District Court under this Part against a
decision of a Local Court:
(a) in relation to an environmental offence against which an appeal
may be made under Part 4, or
(b) that is or has previously been the subject of an appeal or
application for leave to appeal to the District Court under this
Part, or
(c) that is or has previously been the subject of an appeal or
application for leave to appeal to the Supreme Court under
Part 5.
(2) Subsection (1) (c) does not prevent a person who has made an appeal
or application for leave to appeal to the Supreme Court under Part 5
from making an appeal or application for leave to appeal to the District
Court under this Part if:
(a) the Supreme Court has remitted the matter on appeal to a Local
Court for redetermination, and the Local Court has
redetermined the matter, or
(b) the Supreme Court has refused leave to appeal in relation to an
appeal made on a ground of mixed law and fact.
(3) No application to set aside or vary any conviction or sentence of a
Local Court that could be the subject of an appeal under this Part may
be made to the District Court (whether in its civil or criminal
jurisdiction) except by way of an appeal under this Part.
30 Rules of court
Rules of court may be made under the District Court Act 1973 with
respect to the jurisdiction conferred by this Part on the District Court.
Page 16
Crimes (Local Courts Appeal and Review) Bill 2001 Clause 31
Appeals from Local Court to Land and Environment Court Part 4
Appeals by defendants Division 1
Part 4 Appeals from Local Court to Land and
Environment Court
Division 1 Appeals by defendants
Subdivision 1 Making of appeals
31 Appeals as of right
(1) Any person who has been convicted or sentenced by a Local Court
with respect to an environmental offence may appeal to the Land and
Environment Court against the conviction or sentence, except in the
case of a person who has been convicted in the person's absence or
following the person's plea of guilty.
(2) An appeal must be made:
(a) within 28 days after sentence is imposed, or
(b) if an application for annulment of the conviction or sentence
has been made under Part 2 within that 28-day period, within
28 days after the Part 2 application is disposed of under that
Part,
but (in the case of an appeal against conviction) may not be made
before sentence is imposed.
32 Appeals requiring leave
(1) Any person who has been convicted by a Local Court, in the person's
absence or following the person's plea of guilty, with respect to an
environmental offence may appeal to the Land and Environment Court
against the conviction, but only on a ground that involves a question
of law alone, and only by leave of the Land and Environment Court.
(2) Any person against whom:
(a) an order has been made by a Magistrate in relation to the
person in any committal proceedings with respect to an
environmental offence, or
Page 17
Clause 32 Crimes (Local Courts Appeal and Review) Bill 2001
Part 4 Appeals from Local Court to Land and Environment Court
Division 1 Appeals by defendants
(b) an interlocutory order has been made by a Local Court in
relation to the person in summary proceedings with respect to
an environmental offence,
may appeal to the Land and Environment Court against the order, but
only on a ground that involves a question of law alone, and only by
leave of the Land and Environment Court.
(3) An application for leave to appeal under subsection (1) may not be
made in relation to a conviction in respect of which the defendant:
(a) is entitled to make an application under section 4 but has not
done so, or
(b) has made an application under section 4 but the application has
not been disposed of under Part 2.
(4) An application for leave to appeal must be made:
(a) in the case of a conviction referred to in subsection (1):
(i) within 28 days after sentence is imposed, or
(ii) if an application for annulment of the conviction has
been made under Part 2 within that 28-day period,
within 28 days after the Part 2 application is disposed of
under that Part,
but may not be made before sentence is imposed, or
(b) in the case of an order referred to in subsection (2), within 28
days after the relevant order is made.
33 Late applications for leave to appeal
(1) An appeal to the Land and Environment Court may be made:
(a) by any person by whom an appeal could be made under section
31, but for section 31 (2), and
(b) by any person by whom an application for leave to appeal
could be made under section 32, but for section 32 (4),
but only by leave of the Land and Environment Court.
(2) An application for leave to appeal must be made within 3 months after
the relevant conviction, sentence or order is made or imposed.
Page 18
Crimes (Local Courts Appeal and Review) Bill 2001 Clause 34
Appeals from Local Court to Land and Environment Court Part 4
Appeals by defendants Division 1
34 Lodgment of appeals and applications for leave to appeal
(1) An appeal under section 31 is to be made by lodging a written notice
of appeal with:
(a) the registrar of any Local Court, or
(b) the person in charge of the place where the appellant is in
custody.
(2) A notice of appeal must state the general grounds of appeal.
(3) An application for leave to appeal under section 32 or 33 is to be made
by lodging a written application for leave to appeal, together with a
written notice of appeal, with:
(a) the registrar of any Local Court, or
(b) the person in charge of the place where the appellant is in
custody.
(4) An application for leave to appeal must state the general grounds of the
application and, in the case of an application under section 33, must
state the reasons why an appeal or an application for leave to appeal
was not made within the time allowed by section 31 or 32, as the case
may be.
(5) On the granting of leave to appeal, an appeal is taken to have been
made in accordance with the written notice of appeal referred to in
subsection (3).
35 Documents to be forwarded to prosecutor and relevant court registrars
(1) The person with whom a notice of appeal or application for leave to
appeal is lodged must immediately forward a copy of it to:
(a) the prosecutor in the original Local Court proceedings, and
(b) the registrar of the original Local Court, if the person is not that
registrar, and
(c) the Director of Public Prosecutions.
(2) As soon as practicable after receiving a notice of appeal or application
for leave to appeal, the registrar of the original Local Court must send
the relevant papers (including a copy of any relevant order or
conviction made by the Local Court) to the registrar of the Land and
Environment Court.
Page 19
Clause 36 Crimes (Local Courts Appeal and Review) Bill 2001
Part 4 Appeals from Local Court to Land and Environment Court
Division 1 Appeals by defendants
Subdivision 2 Determination of appeals
36 Determination of applications for leave to appeal
(1) The Land and Environment Court may determine an application for
leave to appeal by dismissing the application or by granting leave to
appeal.
(2) Leave to appeal must not be granted in relation to an application under
section 33 unless the Land and Environment Court is satisfied that it
is in the interests of justice that leave be granted.
(3) If the Land and Environment Court dismisses an application for leave
to appeal, it may make such order as to the costs to be paid by the
appellant as it thinks just.
(4) If the Land and Environment Court grants leave to appeal, it may
proceed to hear the appeal immediately or it may adjourn the appeal
proceedings.
37 Appeals to be by way of rehearing on the transcripts of evidence
(1) An appeal is to be dealt with by way of rehearing on the basis of
certified transcripts of evidence given in the original Local Court
proceedings, except as provided by section 38.
(2) Fresh evidence may be given, but only by leave of the Land and
Environment Court which may be granted only if the Court is satisfied
that it is in the interests of justice that the fresh evidence be given.
(3) The parties to an appeal are each entitled to be provided with one free
copy of the certified transcripts of evidence relevant to the appeal and,
if fresh evidence is given, one free copy of the transcript of the fresh
evidence.
38 Circumstances in which evidence to be given in person
(1) The Land and Environment Court may direct a person to attend and
give evidence in proceedings on an appeal against conviction if it is
satisfied that there are substantial reasons why, in the interests of
justice, the person should attend and give evidence.
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Crimes (Local Courts Appeal and Review) Bill 2001 Clause 38
Appeals from Local Court to Land and Environment Court Part 4
Appeals by defendants Division 1
(2) An application for such a direction may be made by a party to the
proceedings in relation to a particular person only if notice of the
party's intention to make such an application has been served on each
other party to the proceedings within such period as the Land and
Environment Court may direct.
(3) If an application for such a direction is refused, the Land and
Environment Court must give reasons for the refusal.
(4) A direction may be withdrawn only on the application, or with the
consent, of the appellant.
(5) The regulations may make provision for or with respect to the
determination of substantial reasons under subsection (1).
(6) Without limiting subsection (5), in determining whether substantial
reasons exist, the Land and Environment Court must have regard to
whether or not the appellant was legally represented for the whole or
any part of the original Local Court proceedings.
39 Determination of appeals
(1) The Land and Environment Court may determine an appeal against
conviction:
(a) by setting aside the conviction, or
(b) by dismissing the appeal.
(2) The Land and Environment Court may determine an appeal against
sentence:
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.
(3) The Land and Environment Court may determine an appeal against an
order referred to in section 32 (2) (a) or (b):
(a) by setting aside the order and making such other order as it
thinks just, or
(b) by dismissing the appeal.
Page 21
Clause 40 Crimes (Local Courts Appeal and Review) Bill 2001
Part 4 Appeals from Local Court to Land and Environment Court
Division 1 Appeals by defendants
40 Notice of dismissal of appeal or application for leave to appeal
(1) If an appeal or application for leave to appeal is dismissed because of
the appellant's failure to appear, the registrar of the Land and
Environment Court must cause notice of that fact to be served on the
appellant.
(2) Such a notice must state the following:
(a) that the Land and Environment Court has dismissed the appeal
or application,
(b) that the appellant is entitled to apply for the setting aside of the
order by which the order dismissing the appeal or application
was made,
(c) that such an application must be made within 12 months after
the date on which the order dismissing the appeal or application
was made.
41 Revocation of orders dismissing appeals and applications for leave to
appeal
(1) An application may be made to the Land and Environment Court for
the setting aside of an order under section 40 that has dismissed an
appeal or application for leave to appeal because of the appellant's
failure to appear (a dismissal order).
(2) An application under this section must be made within 12 months after
the date on which the dismissal order is made.
(3) After hearing such an application, the Land and Environment Court
may set aside the dismissal order, either unconditionally or subject to
conditions, if it is satisfied:
(a) that the appellant has shown sufficient cause for the failure to
appear, and
(b) that it is in the interests of justice that the appeal or application
be heard.
(4) Section 60 applies to any sentence in respect of which a dismissal
order is set aside.
(5) No action lies against any person for anything done or omitted to be
done by the person in good faith, and without notice of the setting
aside of a dismissal order, for the purpose of enforcing the conviction
or sentence the subject of the appeal to which the order relates.
Page 22
Crimes (Local Courts Appeal and Review) Bill 2001 Clause 41
Appeals from Local Court to Land and Environment Court Part 4
Appeals by prosecutors Division 2
Division 2 Appeals by prosecutors
Subdivision 1 Making of appeals
42 Appeals as of right
(1) The Director of Public Prosecutions may appeal to the Land and
Environment Court against a sentence imposed on a person by a Local
Court in relation to an environmental offence for which proceedings
have been prosecuted by or on behalf of a public authority (other than
the Environment Protection Authority).
(2) The Environment Protection Authority may appeal to the Land and
Environment Court against a sentence imposed on a person by a Local
Court in relation to an environmental offence for which proceedings
have been prosecuted by or on behalf of the Environment Protection
Authority.
(3) An appeal must be made within 28 days after the relevant sentence is
imposed.
(4) Despite subsection (3), an appeal may be lodged more than 28 days
after the relevant sentence is imposed if:
(a) the sentence has been reduced on the defendant's undertaking
to assist law enforcement authorities (as referred to in section
23 of the Crimes (Sentencing Procedure) Act 1999), and
(b) the defendant has failed, whether wholly or partly, to fulfil the
undertaking.
43 Appeals requiring leave
(1) The Director of Public Prosecutions may appeal to the Land and
Environment Court against:
(a) an order that has been made by a Magistrate in relation to a
person in any committal proceedings with respect to an
environmental offence, or
(b) an interlocutory order that has been made by a Local Court in
relation to a person in summary proceedings with respect to an
environmental offence,
but only on a ground that involves a question of law alone, and only
by leave of the Land and Environment Court.
Page 23
Clause 43 Crimes (Local Courts Appeal and Review) Bill 2001
Part 4 Appeals from Local Court to Land and Environment Court
Division 2 Appeals by prosecutors
(2) An application for leave to appeal must be made within 28 days after
the relevant order is made.
44 Lodgment of appeals and applications for leave to appeal
(1) An appeal under section 42 is to be made by lodging a written notice
of appeal with the registrar of any Local Court.
(2) A notice of appeal must state the general grounds of appeal.
(3) An application for leave to appeal under section 43 is to be made by
lodging a written application for leave to appeal, together with a
written notice of appeal, with the registrar of any Local Court.
(4) An application for leave to appeal must state the general grounds of the
application.
45 Documents to be forwarded to defendant and relevant court registrars
(1) The person with whom a notice of appeal or application for leave to
appeal is lodged must immediately forward a copy of it to:
(a) the defendant in the original Local Court proceedings, and
(b) the registrar of the original Local Court, if the person is not that
registrar.
(2) As soon as practicable after receiving a notice of appeal or application
for leave to appeal, the registrar of the original Local Court must send
the relevant papers (including a copy of any relevant order or
conviction made by the Local Court) to the registrar of the Land and
Environment Court.
Subdivision 2 Determination of appeals
46 Determination of applications for leave to appeal
(1) The Land and Environment Court may determine an application for
leave to appeal by dismissing the application or by granting leave to
appeal.
(2) If the Land and Environment Court dismisses an application for leave
to appeal, it may make such order as to the costs to be paid by the
Director of Public Prosecutions as it thinks just.
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Crimes (Local Courts Appeal and Review) Bill 2001 Clause 46
Appeals from Local Court to Land and Environment Court Part 4
Appeals by prosecutors Division 2
(3) If the Land and Environment Court grants leave to appeal, it may
proceed to hear the appeal immediately or it may adjourn the appeal
proceedings.
47 Appeals against sentence to be by way of rehearing of evidence
(1) An appeal is to be dealt with by way of a rehearing of the evidence
given in the original Local Court proceedings, although fresh evidence
may be given in the appeal proceedings, but only by leave of the Land
and Environment Court.
(2) Leave to give fresh evidence may be granted to the Director of Public
Prosecutions or Environment Protection Authority only in exceptional
circumstances.
48 Determination of appeals
(1) The Land and Environment Court may determine an appeal against
sentence:
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.
(2) The Land and Environment Court may determine an appeal against an
order referred to in section 43 (1) (a) or (b):
(a) by setting aside the order and making such other order as it
thinks just, or
(b) by dismissing the appeal.
Division 3 Miscellaneous
49 Miscellaneous powers
(1) Without limiting its other powers, the Land and Environment Court
may do any one or more of the following:
(a) it may specify the sitting at which the hearing of an appeal or
application for leave to appeal is to be heard or continued,
(b) it may adjourn the hearing of an appeal or application for leave
to appeal.
Page 25
Clause 49 Crimes (Local Courts Appeal and Review) Bill 2001
Part 4 Appeals from Local Court to Land and Environment Court
Division 3 Miscellaneous
(2) In determining an appeal, the Land and Environment Court may
exercise any function that the original Local Court could have
exercised in the original Local Court proceedings.
(3) In determining an appeal against an order referred to in section
43 (1) (a) or (b), the Land and Environment Court has the same
jurisdiction as the Supreme Court with respect to such an appeal.
(4) Subject to section 70, the Land and Environment Court may make
such order as to the costs to be paid by either party (including the
Crown) as it thinks just.
50 Limits on appeals
(1) No appeal may be made to the Land and Environment Court under this
Part against a decision of a Local Court:
(a) that is or has previously been the subject of an appeal or
application for leave to appeal to the Land and Environment
Court under this Part, or
(b) that is or has previously been the subject of an appeal or
application for leave to appeal to the Supreme Court under
Part 5.
(2) Subsection (1) (b) does not prevent a person who has made an appeal
or application for leave to appeal to the Supreme Court under Part 5
from making an appeal or application for leave to appeal to the Land
and Environment Court under this Part if:
(a) the Supreme Court has remitted the matter on appeal to a Local
Court for redetermination, and the Local Court has
redetermined the matter, or
(b) the Supreme Court has refused leave to appeal in relation to:
(i) an appeal made on a ground of mixed law and fact, or
(ii) an appeal with respect to an environmental offence.
(3) No application to set aside or vary any conviction or sentence of a
Local Court that could be the subject of an appeal under this Part may
be made to the Land and Environment Court (whether in its civil or
criminal jurisdiction) except by way of an appeal under this Part.
51 Rules of court
Rules of court may be made under the Land and Environment Court
Act 1979 with respect to the jurisdiction conferred by this Part on the
Land and Environment Court.
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Crimes (Local Courts Appeal and Review) Bill 2001 Clause 52
Appeals from Local Court to Supreme Court Part 5
Appeals by defendants Division 1
Part 5 Appeals from Local Court to Supreme Court
Division 1 Appeals by defendants
Subdivision 1 Making of appeals
52 Appeals as of right
(1) Any person who has been convicted or sentenced by a Local Court,
otherwise than with respect to an environmental offence, may appeal
to the Supreme Court against the conviction or sentence, but only on
a ground that involves a question of law alone.
(2) An appeal must be made within such period after the date of the
conviction or sentence as may be prescribed by rules of court.
53 Appeals requiring leave
(1) Any person who has been convicted or sentenced by a Local Court,
otherwise than with respect to an environmental offence, may appeal
to the Supreme Court against the conviction or sentence on a ground
that involves:
(a) a question of fact, or
(b) a question of mixed law and fact,
but only by leave of the Supreme Court.
(2) Any person who has been convicted or sentenced by a Local Court
with respect to an environmental offence, may appeal to the Supreme
Court against the conviction or sentence, but only on a ground that
involves a question of law alone, and only by leave of the Supreme
Court.
(3) Any person against whom:
(a) an order has been made by a Magistrate in relation to the
person in any committal proceedings, or
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Clause 53 Crimes (Local Courts Appeal and Review) Bill 2001
Part 5 Appeals from Local Court to Supreme Court
Division 1 Appeals by defendants
(b) an interlocutory order has been made by a Local Court in
relation to the person in summary proceedings,
may appeal to the Supreme Court against the order, but only on a
ground that involves a question of law alone, and only by leave of the
Supreme Court.
(4) An application for leave to appeal must be made within such period
after the date of the conviction, sentence or order as may be prescribed
by rules of court.
Subdivision 2 Determination of appeals
54 Determination of applications for leave to appeal
(1) The Supreme Court may determine an application for leave to appeal
by dismissing the application or by granting leave to appeal.
(2) Leave to appeal must not be granted in relation to an application with
respect to an environmental offence unless the Supreme Court is
satisfied that the appeal is likely to require the resolution of a matter
relating to constitutional law or a matter of general application.
(3) If the Supreme Court dismisses an application for leave to appeal, it
may make such order as to the costs to be paid by the appellant as it
thinks just.
(4) If the Supreme Court grants leave to appeal, it may proceed to hear the
appeal immediately or it may adjourn the appeal proceedings.
55 Determination of appeals
(1) The Supreme Court may determine an appeal against conviction:
(a) by setting aside the conviction, or
(b) by setting aside the conviction and remitting the matter to the
original Local Court for redetermination in accordance with the
Supreme Court's directions, or
(c) by dismissing the appeal.
(2) The Supreme Court may determine an appeal against sentence:
(a) by setting aside the sentence, or
(b) by varying the sentence, or
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Crimes (Local Courts Appeal and Review) Bill 2001 Clause 55
Appeals from Local Court to Supreme Court Part 5
Appeals by defendants Division 1
(c) by setting aside the sentence and remitting the matter to the
original Local Court for redetermination, in relation to
sentence, in accordance with the Supreme Court's directions, or
(d) by dismissing the appeal.
(3) The Supreme Court may determine an appeal against an order referred
to in section 53 (3) (a) or (b):
(a) by setting aside the order and making such other order as it
thinks just, or
(b) by dismissing the appeal.
Division 2 Appeals by prosecutors
Subdivision 1 Making of appeals
56 Appeals as of right
(1) The prosecutor may appeal to the Supreme Court against:
(a) a sentence imposed by a Local Court in any summary
proceedings, or
(b) an order made by a Local Court that stays any summary
proceedings for the prosecution of an offence, or
(c) an order made by a Local Court dismissing a matter the subject
of any summary proceedings, or
(d) an order for costs made by a Magistrate against the prosecutor
in any committal proceedings, or
(e) an order for costs made by a Local Court against the prosecutor
in any summary proceedings,
other than an order or sentence with respect to an environmental
offence, but only on a ground that involves a question of law alone.
(2) An appeal must be made within such period after the date of the
sentence or order as may be prescribed by rules of court.
Page 29
Clause 57 Crimes (Local Courts Appeal and Review) Bill 2001
Part 5 Appeals from Local Court to Supreme Court
Division 2 Appeals by prosecutors
57 Appeals requiring leave
(1) The prosecutor may appeal to the Supreme Court against:
(a) a sentence imposed by a Local Court with respect to an
environmental offence, or
(b) an order that has been made by a Magistrate in relation to a
person in any committal proceedings, or
(c) an interlocutory order that has been made by a Local Court in
relation to a person in summary proceedings,
but only on a ground that involves a question of law alone, and only
by leave of the Supreme Court.
(2) An application for leave to appeal must be made within such period
after the date of the sentence or order as may be prescribed by rules of
court.
Subdivision 2 Determination of appeals
58 Determination of applications for leave to appeal
(1) The Supreme Court may determine an application for leave to appeal
by dismissing the application or by granting leave to appeal.
(2) Leave to appeal must not be granted in relation to an application with
respect to an environmental offence unless the Supreme Court is
satisfied that the appeal is likely to require the resolution of a matter
relating to constitutional law or a matter of general application.
(3) If the Supreme Court dismisses an application for leave to appeal, it
may make such order as to the costs to be paid by the prosecutor as it
thinks just.
(4) If the Supreme Court grants leave to appeal, it may proceed to hear the
appeal immediately or it may adjourn the appeal proceedings.
59 Determination of appeals
(1) The Supreme Court may determine an appeal against sentence:
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.
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Crimes (Local Courts Appeal and Review) Bill 2001 Clause 59
Appeals from Local Court to Supreme Court Part 5
Appeals by prosecutors Division 2
(2) The Supreme Court may determine an appeal against an order referred
to in section 56 (1) (b), (c) or (d) or 57 (1) (b) or (c):
(a) by setting aside the order and making such other order as it
thinks just, or
(b) by dismissing the appeal.
Division 3 Miscellaneous
60 Limits on appeals
A person may not appeal to the Supreme Court under this Part against
a decision of a Local Court:
(a) that is or has previously been the subject of an appeal or
application for leave to appeal to the Supreme Court under this
Part, or
(b) that is or has previously been the subject of an appeal or
application for leave to appeal to the Court of Criminal Appeal
under the Criminal Appeal Act 1912.
61 Rules of court
Rules of court may be made under the Supreme Court Act 1970 with
respect to the jurisdiction conferred by this Part on the Supreme Court.
Page 31
Clause 62 Crimes (Local Courts Appeal and Review) Bill 2001
Part 6 Provisions common to all appeals
Part 6 Provisions common to all appeals
62 Effect of defect in notice of appeal or application for leave to appeal
(1) A notice of appeal or application for leave to appeal is not invalid
merely because of a defect, whether of substance or form, in the notice
or application.
(2) An appeal court hearing an appeal or application for leave to appeal
may amend any such notice or application if it is satisfied that the
notice or application is capable of amendment and ought to be
amended.
(3) Such an amendment may be made subject to such conditions as to
adjournment as the appeal court thinks just.
(4) An appeal court may dispose of an appeal or application for leave to
appeal, despite the relevant notice or application having not been
served on an interested party, if it is satisfied that the party:
(a) is aware of the date, time and place fixed for dealing with the
appeal or application and has not been prejudiced as a
consequence of the notice or application having not been
served, or
(b) is avoiding service of the notice or application, or
(c) cannot, after reasonable search and inquiry, be found.
63 Stay of execution of sentence pending determination of appeal
(1) This section applies to:
(a) any sentence, and
(b) any penalty, restitution, compensation, forfeiture, destruction,
disqualification or loss or suspension of a licence or privilege
that arises under an Act as a consequence of a conviction,
in respect of which an appeal or application for leave to appeal is made
under this Act.
(2) The execution of any such sentence, and the operation of any such
penalty, restitution, compensation, forfeiture, destruction,
disqualification or loss or suspension of a licence or privilege, is
stayed:
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Crimes (Local Courts Appeal and Review) Bill 2001 Clause 63
Provisions common to all appeals Part 6
(a) except as provided by paragraphs (b) and (c), when notice of
appeal is duly lodged, or
(b) in the case of an appellant whose appeal is the subject of an
application for leave, when leave to appeal is granted, or
(c) in the case of an appellant who is in custody when the appeal
is made or leave to appeal is granted, when the appellant enters
into a bail undertaking, or when bail is dispensed with, under
the Bail Act 1978.
(3) Subject to any order of the appeal court, a stay of execution continues
in force until the appeal is finally determined.
(4) Such an order is to be made only if the appeal court is satisfied, in
proceedings on an application by the prosecutor, that the appellant has
unduly delayed the appeal proceedings.
(5) In this section, a reference to an appellant who is in custody includes
a reference to a person who is the subject of a periodic detention order
or home detention order within the meaning of the Crimes
(Administration of Sentences) Act 1999.
64 Extension of appeal proceedings to other convictions and sentences
If an appeal or application for leave to appeal has been duly made in
respect of one conviction or sentence (the primary conviction or
sentence), an appeal court may hear and determine an appeal or
application for leave to appeal in respect of any other conviction or
sentence made or imposed on the same day, and in respect of the same
person, as the primary conviction or sentence, and may do so even
though an appeal or application for leave to appeal has not been duly
made in respect of the other conviction or sentence.
65 Appeal not to succeed on narrow technical grounds
(1) A conviction, order or sentence is not to be set aside on an appeal
merely because of:
(a) an omission or mistake in the form of the conviction or order,
or
(b) an error in law in the order or sentence,
if it appears to the appeal court that there were sufficient grounds
before the Local Court to have authorised a conviction, order or
sentence free from the omission, mistake or error.
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Clause 65 Crimes (Local Courts Appeal and Review) Bill 2001
Part 6 Provisions common to all appeals
(2) In such a case, the appeal court:
(a) may amend the conviction, order or sentence and determine the
appeal as if the omission, mistake or error did not exist, or
(b) may remit the matter to the Local Court to make the conviction
or order, or impose the sentence, authorised by law and to
amend the conviction, order or sentence accordingly.
66 Unavailability of original Magistrate
If an appeal court remits a matter to a Local Court and the Magistrate
who made the original conviction or order or imposed the original
sentence:
(a) has ceased to hold office as a Magistrate, or
(b) is for any other reason unable to continue to hear and determine
the matter,
the matter is to be dealt with by another Magistrate nominated by the
Chief Magistrate.
67 Withdrawal of appeals and applications
(1) An appeal or application for leave to appeal may at any stage be
withdrawn by the appellant, but only by leave of the appeal court.
(2) In granting leave for an appeal or application for leave to appeal to be
withdrawn, the appeal court may make such orders as are necessary to
place the appellant as nearly as practicable in the same position as if
the appeal or application had not been made.
(3) Any order made by the appeal court in respect of an appeal or
application for leave to appeal that is withdrawn is taken to have been
made by the Local Court.
68 Court may confirm or vary conviction or sentence with effect from
earlier day
(1) An appeal court may order that a conviction or sentence confirmed or
varied by it on appeal, or any part of it:
(a) is to take effect (as confirmed or varied) on and from a day
specified in the order, or
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Crimes (Local Courts Appeal and Review) Bill 2001 Clause 68
Provisions common to all appeals Part 6
(b) in the case of a sentence that has been served in part, is to
recommence (as confirmed or varied) on and from a day
specified in the order,
being the day on which the order is made or an earlier day.
(2) The order has effect despite any stay of execution that has been in
force in respect of the sentence appealed against.
69 Effect on good behaviour bonds of confirmation of sentence
If an appeal court confirms a sentence on appeal, any good behaviour
bond that the appellant entered into as a consequence of the original
sentence continues to have effect according to its terms, except to the
extent to which the appeal court otherwise directs and despite any stay
of execution that has been in force in respect of the sentence.
70 Limit on costs awarded against public prosecutor
(1) Costs are not to be awarded in favour of an appellant whose conviction
is set aside unless the appeal court is satisfied:
(a) that the investigation into the alleged offence was conducted in
an unreasonable or improper manner, or
(b) that the proceedings in the Local Court were initiated without
reasonable cause or in bad faith, or were conducted by the
prosecutor in an improper manner, or
(c) that the prosecutor unreasonably failed to investigate (or to
investigate properly) any relevant matter:
(i) that the prosecutor was or ought reasonably to have
been aware of, and
(ii) that suggested that the appellant might not be guilty or
that, for any other reason, the proceedings should not
have been brought, or
(d) that, because of other exceptional circumstances relating to the
conduct of the proceedings by the prosecutor, it is just and
reasonable to award costs in favour of the appellant.
(2) This section does not apply to the awarding of costs against a
respondent acting in a private capacity.
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Clause 70 Crimes (Local Courts Appeal and Review) Bill 2001
Part 6 Provisions common to all appeals
(3) For the purposes of subsection (2), an officer of an approved charitable
organisation (within the meaning of the Prevention of Cruelty to
Animals Act 1979) is taken not to be acting in a private capacity if the
officer acts as the respondent in any appeal arising from proceedings
under that Act.
71 Variation of sentences of Local Court
(1) An appeal court may not vary a sentence so that the sentence as varied
could not have been imposed by the original Local Court.
(2) An appeal court may not make an order or impose a sentence that
could not have been made or imposed by the original Local Court.
(3) Any sentence varied or imposed by an appeal court, and any order
made by an appeal court under this Act, has the same effect and may
be enforced in the same manner as if it were made by the original
Local Court.
72 Orders for costs
An appeal court that orders an appellant or respondent to pay costs:
(a) must direct that the costs be paid to the registrar of the original
Local Court, and
(b) must state a time within which the costs or other amount must
be paid.
73 Evidence of setting aside of conviction or sentence
(1) If a conviction or sentence is set aside on an appeal, the registrar of the
appeal court must cause a memorandum to that effect to be endorsed
on the conviction or on the order by which the sentence was imposed.
(2) A copy of the memorandum is sufficient evidence that the conviction
or sentence has been set aside.
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Crimes (Local Courts Appeal and Review) Bill 2001 Clause 74
Miscellaneous Part 7
Part 7 Miscellaneous
74 Applications and appeals in relation to children
(1) An application or appeal in respect of a child may be made under this
Act either by the child or, on behalf of the child:
(a) by the child's legal representative, or
(b) except as provided by paragraph (c), by a person having
parental responsibility for the child, or
(c) if the Director-General of the Department of Community
Services or a designated agency has the care responsibility for
the child, by the Director-General.
(2) In subsection (1), care responsibility, designated agency and parental
responsibility have the same meanings as they have in the Children
and Young Persons (Care and Protection) Act 1998.
75 Prerogative of mercy preserved
Nothing in this Act limits or affects in any manner the prerogative of
mercy.
76 Attorney General may exercise functions of Director of Public
Prosecutions
(1) Any function that by or under this Act is conferred or imposed on the
Director of Public Prosecutions may, at any time and in any case, be
exercised by the Attorney General, and may be so exercised even if the
same or a similar function has already been exercised in the same case
by the Director of Public Prosecutions.
(2) Any function exercised by the Attorney General pursuant to this
section is taken to have been exercised by the Director of Public
Prosecutions.
77 Act not to apply to Magistrate's ministerial functions
This Act does not apply to or in respect of a Magistrate's exercise of
ministerial functions, except to the extent to which this Act expressly
so provides.
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Clause 78 Crimes (Local Courts Appeal and Review) Bill 2001
Part 7 Miscellaneous
78 Bail Act 1978 to prevail
The Bail Act 1978 prevails to the extent of any inconsistency between
that Act and this Act.
79 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted
to be prescribed or that is necessary or convenient for carrying out or
giving effect to this Act.
(2) To the extent to which any other Act so provides, the regulations may
modify the operation of this Act for the purposes of its application to
matters arising under that other Act.
80 Savings, transitional and other provisions
Schedule 1 has effect.
81 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as practicable after the period
of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
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Crimes (Local Courts Appeal and Review) Bill 2001
Savings, transitional and other provisions Schedule 1
Schedule 1 Savings, transitional and other provisions
(Section 80)
Part 1 Preliminary
1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Such a provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later day.
(3) To the extent to which such a provision takes effect from a date that
is earlier than the date of its publication in the Gazette, the provision
does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of that publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of that publication.
Part 2 Provisions consequent on enactment of this Act
Division 1 General
2 Definition
In this Part:
appointed day means:
(a) in relation to a provision of the Justices Act 1902 that has been
repealed, the day on which the repeal commences, or
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Crimes (Local Courts Appeal and Review) Bill 2001
Schedule 1 Savings, transitional and other provisions
(b) in relation to a provision of this Act, the day on which the
provision commences.
3 Applications and referrals under Part 4A of Justices Act 1902
Part 4A of the Justices Act 1902 continues to apply to and in respect
of any application or reference under that Part that had not been finally
dealt with before the appointed day as if that Act had not been
repealed.
4 Appeals and applications under Part 5 of Justices Act 1902
Part 5 of the Justices Act 1902 continues to apply to and in respect of
any appeal or application under that Part that had not been finally dealt
with before the appointed day as if that Act had not been repealed.
5 Appeals and applications under Part 5A of Justices Act 1902
Part 5A of the Justices Act 1902 continues to apply to and in respect
of any appeal or application under that Part that had not been finally
dealt with before the appointed day as if that Act had not been
repealed.
6 Appeals and applications under Part 5B of Justices Act 1902
Part 5B of the Justices Act 1902 continues to apply to and in respect
of any appeal or application under that Part that had not been finally
dealt with before the appointed day as if that Act had not been
repealed.
7 Construction of certain references
Subject to this Schedule and the regulations, in any Act or instrument:
(a) a reference to a provision of the Justices Act 1902 for which
there is a corresponding provision in this Act extends to the
corresponding provision of this Act, and
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Crimes (Local Courts Appeal and Review) Bill 2001
Savings, transitional and other provisions Schedule 1
(b) a reference to any act, matter or thing referred to in a provision
of the Justices Act 1902 for which there is a corresponding
provision in this Act extends to the corresponding act, matter
or thing referred to in the corresponding provision of this Act.
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