Victorian Consolidated Legislation

Magistrates' Court Act 1989 - SCHEDULE 6

Section 88 PROCEDURE ON APPEALS TO THE COUNTY COURT

1. Service of notice of appeal



(1) Notice of an appeal under section 83 or 84 must be given within 30 days
after the day on which the sentencing order of the Magistrates' Court was
made.

(2) A notice of appeal given after the end of the period referred to in
subclause (1) is deemed to be an application for leave to appeal on the
grounds stated in the notice.

(3) The County Court may grant leave to appeal under subclause (2) and the
appellant may proceed with the appeal if-

   (a)  it is of the opinion that the failure to give notice of appeal within
        the period referred to in subclause (1) was due to exceptional
        circumstances; and

   (b)  it is satisfied that the respondent's case would not be materially
        prejudiced because of the delay.

(4) Notice of appeal is given by filing with the registrar of the Magistrates'
Court at any venue of the Court a notice in the form prescribed by the rules
of the County Court and stating the general grounds of appeal and serving a
copy of the notice on the respondent in accordance with clause 5.





(4A) A notice of appeal under section 83 must include a statement in the form
approved by the Chief Judge of the County Court signed by the appellant to the
effect that the appellant is aware that on the appeal the County Court may
make a sentencing order more severe than that sought to be appealed against.

(4B) Before accepting receipt of a notice of appeal under section 83 a
registrar of the Magistrates' Court must-

   (a)  give to the person seeking to file the notice of appeal a notice in
        the form approved by the Chief Judge of the County Court to the effect
        that on the appeal the County Court may make a sentencing order more
        severe than that sought to be appealed against; and

   (b)  if the person seeking to file the notice of appeal is not the proposed
        appellant, be satisfied that the proposed appellant has signed the
        statement required to be included in the notice of appeal by subclause
        (4A).

(5) A registrar who receives a notice of appeal under subclause (4) must
forward a copy of it to the registrar of the County Court.

(6) If the County Court is satisfied that-

   (a)  a copy of a notice of appeal was served on the respondent; and

   (b)  the appeal was not afterwards prosecuted or the County Court has no
        jurisdiction to hear and determine the appeal-

the County Court may order the appellant to pay to the respondent any costs
that it thinks reasonable.



2. Undertaking to prosecute appeal



(1) A notice of an appeal under section 83 must include an undertaking signed
by the appellant-

   (a)  to appear at the County Court to prosecute the appeal at a place and
        on a day fixed or to be fixed by the registrar of the County Court and
        to be present in the County Court for the duration of the appeal; and

   (b)  to notify forthwith the registrar of the County Court in writing of
        any change of address of the appellant from that appearing in the
        notice of appeal.

(2) An undertaking under subclause (1) must be signed by the appellant in the
presence of-

   (a)  the registrar of the Magistrates' Court with whom the notice of appeal
        is filed; or

   (b)  if the appellant is in a prison or youth justice centre or youth
        residential centre, the officer in charge of the prison or youth
        justice centre or youth residential centre or any prison officer of or
        above the rank of senior prison officer; or

   (c)  if the appellant is in a police gaol, a member of the police force of
        or above the rank of sergeant or for the time being in charge of a
        police station.

(3) If an appellant breaches an undertaking under subclause (1) or abandons an
appeal under clause 6, the County Court may order the appellant to pay any
costs incurred as a result of the breach or abandonment.

(4) A corporation may sign a notice of appeal and enter into an undertaking
under subclause (1) by a person duly appointed by the corporation to represent
it for those purposes.

3. Stay of order



(1) If an appellant is not in custody because of the sentencing order appealed
against, the appeal operates as a stay of the sentencing order when the
appellant files the notice of appeal and signs the undertaking referred to in
clause 2(1).

(2) If an appellant is in custody because of the sentencing order appealed
against, the appeal operates as a stay of the sentencing order when-

   (a)  the appellant files the notice of appeal and signs the undertaking
        referred to in clause 2(1); and

   (b)  the appellant enters bail, if bail is granted under clause 4.

(3) This clause is subject to section 29 of the Road Safety Act 1986.

4. Bail pending appeal



(1) If an appellant is in custody because of the sentencing order appealed
against and wishes to be released pending the determination of the appeal, the
appellant-

   (a)  may apply to the Magistrates' Court to be released on bail; and

   (b)  if he or she makes such an application, must give reasonable notice of
        the application to the respondent to the appeal.

(2) If an application is made under subclause (1), the Court must either grant
or refuse bail as if the appellant were accused of an offence and were being
held in custody in relation to that offence and, for this purpose, the
Bail Act 1977 (with any necessary modifications) applies.





5. Service of notices

A copy of a notice of appeal must be served on the respondent-

   (a)  by delivering it to the respondent personally or by leaving it for the
        respondent at the respondent's last or most usual place of residence
        or of business with a person who apparently resides or works there and
        who apparently is not less than 16 years of age; or

   (b)  in any other manner directed by the Court if satisfied that service as
        provided in paragraph (a) cannot reasonably be effected.

6. Abandonment of appeal



(1) An appellant may, subject to subclause (2A), abandon an appeal against a
sentencing order under which a term of imprisonment or detention was imposed-

   (a)  if the appellant is not in custody, by surrendering to the registrar
        of the County Court and immediately filing with the registrar a notice
        in the form prescribed by the rules of the County Court; or

   (b)  if the appellant is in custody, by filing with the registrar of the
        County Court a notice referred to in paragraph (a).

(2) An appellant may, subject to subclause (2A), abandon an appeal against any
other sentencing order by filing with the registrar of the County Court a
notice in the form prescribed by the rules of the County Court.

(2A) After the end of the period referred to in clause 1(1), an appellant may
only abandon an appeal against a sentencing order with the leave of the County
Court granted on an application by the appellant under this subclause.

(2B) An application may be made under subclause (2A) at any time before or
after the County Court commences to hear the appeal and, if the County Court
grants such an application after commencing to hear the appeal, it must order
the reinstatement of the order of the Magistrates' Court.

(2C) The County Court may only grant leave on an application under subclause
(2A) if it is satisfied that it is in the interests of justice to do so
because of the existence of exceptional circumstances.

(3) If an appeal is struck out under section 86(3), the registrar of the
County Court must give to the respondent or to the respondent's legal
practitioner a copy of the order striking out the appeal.

(4) The making of an order striking out an appeal discharges the undertaking
of the appellant to prosecute the appeal.

7. Costs on abandonment



(1) Within 30 days after receiving a copy of the order striking out the
appeal, the respondent may apply to the County Court for an order dealing with
the respondent's costs of the appeal.

(2) If a respondent proposes to apply to the Court under subclause (1), the
respondent must first give notice in writing of the proposed application to
the appellant.

(3) A notice under subclause (2) may be given by posting it to the address of
the appellant on the notice of appeal.

(4) On an application under subclause (1), the County Court may make any order
that it considers just.





8. One notice of appeal for two or more sentencing orders

If sentencing orders are made in respect of two or more charges contained in
the one charge-sheet and heard together, the appellant may give one notice of
appeal for all or any of those sentencing orders.

9. Appeal against aggregate sentence



(1) If the sentencing order appealed against is an aggregate sentence of
imprisonment imposed in accordance with section 9(1) of the
Sentencing Act 1991, or an aggregate fine imposed in accordance with section
51 of that Act, the registrar of the Magistrates' Court with whom the notice
of appeal is filed must ensure that the original charge sheet or charge sheets
are transmitted to the registrar of the County Court.

(2) On sentencing an appellant where the sentencing order appealed against is
of a kind referred to in subclause (1), the County Court may rely on any
agreed statement of facts (however derived) relevant to any charge contained
in the original charge sheet or charge sheets.

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