Appeals to the Supreme Court of Victoria

An appeal may be made to the Supreme Court following a final order of the Magistrates' Court. Such an appeal is an appeal on a question of law, and it is not conducted as a de novo hearing. If it is strategically beneficial to conduct a de novo appeal of a criminal hearing, an appeal should be made to the County Court instead.

When can a Supreme Appeal be made?

There are time limits with respect to a lodgement of an appeal against a final order of a criminal proceeding of the Magistrates' Court. Such an appeal must be lodged with 28 days of the final order at the Magistrates' Court. Notice of appeal must be made to the respondent within 7 days of lodging the appeal.

The Supreme Court may grant leave to appeal out of time if failure to lodge on time was due to exceptional circumstances and the case of another party to the appeal would not be prejudiced by the delay.

What is an appeal on a question of law?

There is a distinction between questions of fact and questions of law. The facts of the case as found by the Magistrates' Court are not the subject of challenge, but rather how the law was applied to the facts. So an appeal on a question of law can be considered if the Magistrates' Court incorrectly applied the law to the facts of the case.

If an accused is sentenced to jail, can the sentence be stayed until the appeal to the Supreme Court on a question of law is heard?

Yes, but only if the Supreme Court agrees to allow it. Section 272(11) of the Criminal Procedure Act 2009 indicates that the Supreme Court may provide for a stay of the order or for admitting any person to bail as it considers appropriate.

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