The Law Handbook 2024

20 Section 1: Understanding our laws and courts 28 days is deemed to be an application to the County Court for leave to appeal. The Notice of Appeal must set out the general grounds on which the appeal is based. It must also include an undertaking signed by the appellant that they will prosecute the appeal (i.e. attend the County Court and conduct their appeal case) and notify the registrar of the County Court of any change of address. If the appellant does not continue with the appeal, the County Court can order them to pay costs. Filing a Notice of Appeal generally acts as a stay of the sentence imposed, although there are two exceptions. First, if the appellant is in custody, the sentencing order is only stayed if and when the court grants bail pending the appeal. Second, a sentencing order that involves the cancellation or suspension of a driver licence is not automatically stayed unless and until the court so orders. The Notice of Appeal must include a signed statement that the appellant is aware that on appeal the County Court may make a sentencing order more severe than that sought to be appealed against. An appellant who wishes to not proceed with an appeal must file a Notice of Abandonment of Appeal with the County Court in the form prescribed by the County Court rules. Any decision of the County Court in its appellant jurisdiction is final. Except where the court sub­ stitutes a sentence of imprisonment for any other sentence imposed; this sentence can be appealed in the Court of Appeal (with the Appeal Court’s leave). The CP Act (ss 283–286) sets out the procedure for appealing a sentence in the Court of Appeal. The DPP has the right to appeal a sentence imposed in the Magistrates’ Court (pt 6.1 CP Act). NOTE A civil order of the Magistrates’ Court cannot be appealed in the County Court. Appealing County Court decisions Appeals against conviction in a criminal trial before a jury – or a sentence imposed by a judge in the County Court or the Supreme Court’s Trial Division – are heard in the Supreme Court’s Court of Appeal. Appeals to the Court of Appeal are only available if the Court of Appeal gives the person leave to appeal (ss 274, 278 CP Act). An application for leave to appeal must be lodged within 28 days after the appellant has been sentenced (ss 275, 279). The DPP cannot appeal an acquittal before a jury, but may appeal a sentence (s 287). It is best to get legal advice before commencing an appeal. County Koori Court The County Koori Court aims to enable greater participation by the Aboriginal community in the sentencing process. The County Koori Court only deals with matters where an Aboriginal or Torres Strait Islander person is pleading guilty and the judge considers it is an appropriate matter to come before the court. Supreme Court Supreme Court: Overview The Supreme Court of Victoria has two parts: the Trial Division and the Court of Appeal. The Trial Division is responsible for matters heard by a single justice (i.e. judge) of the Supreme Court. The Trial Division consists of the chief justice and other justices of the court. The Trial Division deals with serious criminal, and serious and complex civil matters. It also deals with judicial review of administrative decisions and appeals from the Victorian Civil and Administrative Tribunal and from the Magistrates’ Court. The Court of Appeal was previously known as the Full Court of the Supreme Court. The Court of Appeal consists of the chief justice, the president of the Court of Appeal, and other justices. For an appeal, it is usual for three justices to sit, although the president of the Court of Appeal may decide that two justices are sufficient for a particular case. NOTE From this point the Trial Division will be referred to as the Supreme Court and the Court of Appeal will be specifically referred to where necessary. For contact details for the Supreme Court, see ‘Contacts’ at the end of this chapter. For more information about the Supreme Court, visit the court’s website at www.supremecourt.vic.gov.au. See also ‘Making a complaint about a judge or magistrate’, below.