On this page:
- Time limits
- What paperwork is involved?
- What can I do about the paperwork if I am in jail?
- What happens to the magistrate’s orders when I lodge a notice of appeal?
- When will I go to the County Court for the appeal hearing?
- What happens at the appeal hearing?
- Can I put off the appeal hearing to a later date?
- Can I drop my appeal hearing completely?
- What happens if I do not go to the appeal hearing at all?
- Does the prosecution have to pay my legal costs if I win the appeal?
- Will I have to pay the prosecution’s costs?
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An appeal is a procedure that allows you to challenge a decision made by a court.
If a magistrate heard your charges and you disagree with their decision, you can appeal. You do this in a higher court, such as the County Court.
You can appeal to the County Court against the:
- conviction – the magistrate’s decision to find you& guilty
- sentence – the penalty or other sentencing order the magistrate gave you.
The appeal involves:
- lodging paperwork
- going to the County Court for an appeal hearing.
Get legal advice before lodging an appeal. A lawyer can advise you on whether your sentence was appropriate. The decision might feel really unfair but this does not mean that you will definitely get a better result if you appeal. It is possible that you will get a heavier penalty.
You only have 28 days from when the magistrate sentences you to appeal.
You need the County Court judge’s permission if you want to appeal after 28 days. You must show the judge that:
- there was some exceptional circumstance or reason why you did not appeal in time
- the prosecution’s case will not be harmed by the delay.
What paperwork is involved?
See the registrar at the Magistrates’ Court and fill out a ‘Notice of appeal’ form. You can do this:
- on the day your case was heard
- at any Magistrates’ Court within 28 days of the magistrate sentencing you.
The registrar will give you two copies of the completed form.
You must give one copy to the person who charged you (usually the informant) within seven days. You do not have to give it to them in person. You can leave a copy for them at their police station or send it by mail, fax or email. Give the other copy to your lawyer if you have one.
What can I do about the paperwork if I am in jail?
Get legal advice before you appeal. Speak with your lawyer if you have one. If you want to go ahead with your appeal, staff at the prison can help you get the ‘Notice of Appeal form’.
What happens to the magistrate’s orders when I lodge a notice of appeal?
When you appeal, most of the magistrate’s orders are stayed until the appeal is heard. That means the orders are put on hold.
For example, if the magistrate ordered you to pay a fine or follow a community corrections order you do not have to follow these orders.
However, you must still follow some orders. These include orders that:
- sentenced you to jail
- suspended or cancelled your driving licence
- meant you had to register as a sex offender.
If the magistrate sentenced you to jail, you can ask the magistrate for bail until the appeal hearing. You can also ask the magistrate for permission to drive if the magistrate cancelled or suspended your licence. However, the magistrate may say no.
Ask your lawyer for help in getting ready to ask the magistrate for these things.
When will I go to the County Court for the appeal hearing?
The registrar at the Magistrates’ Court will give you the date for the County Court appeal hearing when you lodge the notice of appeal. Be ready to go ahead with your hearing on that date. Get legal advice well before then.
What happens at the appeal hearing?
The hearing involves a County Court judge listening to the whole case again. There is no jury. The witnesses come and give evidence again. You can also ask new witnesses to come. The prosecutor will be there.
If you pleaded guilty to the charges in the Magistrates’ Court, you can change your plea to not guilty. However, the prosecutor might try to show that your earlier guilty plea is evidence of you being guilty.
If you are pleading guilty or are found guilty, the judge can give you:
- a lighter sentence
- a more severe sentence
- the same sentence the magistrate gave you.
The judge must warn you if they are thinking of giving you a more severe penalty. This will give you a chance to ask to drop your appeal.
Can I put off the appeal hearing to a later date?
Only if there is a good reason why you cannot go ahead with the appeal hearing. A good reason might be you or a member of your family are in hospital.
You must contact the County Court as soon as you can. You will have to go into court to ask a judge to put the hearing off until a later date.
Can I drop my appeal hearing completely?
Yes. You can drop (abandon) your appeal at any time, even on the day of your appeal hearing. If you want to do this, get legal advice immediately.
You need to go to the County Court and lodge a form stating that you are abandoning your appeal. However, if you drop your appeal on the day of the appeal hearing you will still have to go before a judge.
Once you have dropped your appeal you have to follow the original sentence the magistrate gave. If the magistrate sentenced you to jail and you are on bail, you will go straight into custody.
What happens if I do not go to the appeal hearing at all?
The judge can:
- throw out the appeal
- put the appeal hearing off to another date.
If your appeal is thrown out, the original sentence of the magistrate applies.
If the judge throws out your appeal because you did not go to the hearing, you can ask the County Court to cancel that order and allow the appeal to go ahead. You must have a good reason for why you did not show up at court.
You need to fill in and lodge a form with the County Court, so get legal advice quickly.
Does the prosecution have to pay my legal costs if I win the appeal?
The judge may order the prosecution to pay your legal costs, if the judge finds you not guilty. If you had a Victoria Legal Aid lawyer for the appeal, the prosecution will pay costs to Victoria Legal Aid. You will not get costs if your appeal was only against your sentence.
Will I have to pay the prosecution’s costs?
The judge can order you to pay the prosecution's legal costs for getting ready and coming to the appeal hearing. This could happen if you:
- had no real grounds or basis for the appeal
- did not go to your appeal hearing
- abandoned your appeal.
If you want to abandon your appeal, do so as soon as you can. This will reduce any of the prosecution’s costs you might have to pay.
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Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au
Reviewed 21 August 2022