When you watch television shows you sometimes see a person appealing a decision made by a court. While it looks easy on TV, in real life, an appeal is a bit more of a process.
What is an appeal?
An appeal is a procedure that allows someone to challenge a decision made by a court, tribunal or government department. For instance, if a magistrate hears your charges and you disagree with their decision, you can appeal to the County Court in Victoria.
Typically people appeal their:
- Conviction – the finding of guilt
- Sentence – the penalty or sentencing order given to you
Before lodging an appeal
Always obtain legal advice before appealing. Experienced criminal lawyers will advise you on whether or not your sentence was appropriate. Even though the decision might feel unfair, you may not get a better result if you appeal. Furthermore, you may even be given a more severe penalty in an appeal.
Appeal process and timeline
An appeal involves lodging paperwork and going to the County Court for an appeal hearing. A notice of appeal must be filed within 28 days of the magistrate’s decision and a copy given to the prosecution within seven days of filing the appeal. You can leave a copy for the prosecution at your local police station or send it by mail, fax or email. Give the other copy to your lawyer if you have one.
When filing an appeal out of the 28-day timeframe you need the County Court judge’s permission. You must show the judge that:
- there was some exceptional circumstance or reason why you did not appeal in time
- the delay will not harm the prosecution’s case
What happens to my original sentence if I appeal?
When you appeal, most of the judge’s orders are put on hold until the appeal is heard.
For instance, 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:
- jail sentences
- drivers licence suspension or cancellation
- registering as a sex offender
You can ask the magistrate permission to drive or request bail if you are sentenced to jail while you await your appeal; however, the magistrate may refuse your request. When requesting anything of a magistrate, we suggest you engage legal representation.
Appeal hearing process
In an appeal case, you cannot bring forward new evidence, unless there are special circumstances. The Judge’s simply read through relevant documents, transcripts of the original case and listens to the legal argument from both parties.
If you pleaded guilty to the charges in the magistrates’ court, you could change your plea to not guilty in your appeal. It is important to note that the prosecutor might suggest your earlier guilty plea is evidence of you being guilty. Engaging an experienced Victorian criminal lawyer will help you navigate these decisions and determine how to proceed with your appeal.
If you are pleading guilty or are found guilty, the appeal judge can give you:
- a lighter sentence
- a more severe sentence
- the same sentence the magistrate gave you
The judge will warn you if they are planning to bestow a more severe penalty on you. With this in mind, you can request to abandon your appeal.
Dropping or abandoning an appeal
You can drop your appeal at any time, even on the day of your appeal hearing.
Once you have dropped your appeal, you have to fulfil the original sentence the magistrate gave you. If the magistrate sentenced you to jail and you are on bail, you will go straight into custody.
Obtaining legal advice from Gallant Law
When undertaking any kind of legal action, it is always suggested you engage experienced legal counsel. A qualified Melbourne lawyer will review your case, explain your options and assist you with your appeal should that be something you require.
Gallant Law is proud to be amongst the most in-demand criminal lawyers across Melbourne, Geelong, and regional Victoria representing countless clients facing a range of charges. To speak with our Geelong or Melbourne criminal defence lawyers, you simply have to contact our office or book your free initial consultation online.
When it comes to comprehensive representation from a qualified criminal lawyer, Melbourne and Geelong clients know to call on the team at Gallant Law – (03) 9070 9885.