If you have been convicted of a criminal offence or are unhappy with the sentence you received, you may have the right to appeal. An appeal is not a guarantee of a different outcome — but it is an important right, and exercising it effectively requires experienced legal advice.

The appeal process in Victoria operates at several levels depending on where your matter was originally heard. This guide explains the main types of appeal available and how each one works.

At Angus Cameron and Partners, we advise clients on the merits of potential appeals and represent them across all Victorian appellate courts, from appeals in the County Court through to the Court of Appeal. If you are considering an appeal, contact us as early as possible — strict time limits apply.

Appeals from the Magistrates’ Court

If you were convicted or sentenced in the Magistrates’ Court, you have the right to appeal to the County Court. This is called a de novo appeal, which means the County Court Judge hears the matter entirely afresh — you are not required to point to a specific error made by the Magistrate, and the Judge is not bound by the original decision.

Appealing against conviction, sentence, or both

You can appeal against your conviction alone, your sentence alone, or both. You have 28 days from the date of your sentence to file a notice of appeal with the Magistrates’ Court. An appeal filed after 28 days requires leave (permission) from the court, which will only be granted in exceptional circumstances.

What happens on appeal

The County Court Judge hears the matter as if for the first time. You are not bound by how your case was run in the Magistrates’ Court, and — importantly — you are not bound by a guilty plea you entered below. The Judge has all the same sentencing options as a Magistrate.

One important caution: if the Judge is considering imposing a heavier sentence that you already have, they must warn you before doing so. At that point you have the option to abandon the appeal.

Bail pending appeal

If you are not in custody because of the sentence being appealed, your sentence is automatically stayed when you file your notice of appeal. If you are in custody, you will need to make a bail application. We can advise you on the prospects of bail pending appeal and make an application on your behalf.

Appeals to the Court of Appeal

If you were convicted or sentenced in the County Court or Supreme Court, any appeal goes to the Court of Appeal. Unlike appeals from the Magistrates’ Court, Court of Appeal proceedings are not de novo — you must identify a specific error in the original proceedings. Leave (permission) from the Court of Appeal is required.

Appeal against conviction

To succeed on a conviction appeal, you must satisfy the Court of Appeal that one of the following applies:

  • the verdict was unreasonable, or could not be supported having regard to the evidence;
  • there was an irregularity in the trial that resulted in a substantial miscarriage of justice; or
  • for some other reason there was a substantial miscarriage of justice.

If the Court of Appeal allows an appeal against conviction, it will set aside the conviction and then either order a new trial, enter an acquittal, substitute a conviction for a different offence, or enter a finding of not guilty by reason of mental impairment.

Appeal against sentence

To succeed on a sentence appeal, you must show that the sentencing judge made a specific error. Recognised errors include:

  • a finding of fact that was not open on the evidence;
  • a sentence that was manifestly excessive;
  • taking into account an irrelevant consideration; or
  • failing to take into account a relevant consideration.

The Court of Appeal may refuse leave if there is no realistic prospect that it would impose a lesser sentence, or that the total effective sentence would be reduced even if an error was found.

If a sentence appeal succeeds, the Court of Appeal will set aside the original sentence and impose the sentence it considers appropriate, or remit the matter to the original court.

DPP Appeals

The Director of Public Prosecutions (DPP) also has the right to appeal in certain circumstances. If you have received a sentence and the DPP considers there was an error and that an appeal is in the public interest, the DPP can appeal to the County Court (from the Magistrates’ Court) or the Court of Appeal (from the County Court or Supreme Court).

A DPP sentence appeal follows the same legal framework as an offender’s sentence appeal — the court must be satisfied there was a specific error and that a different sentence should be imposed. If you receive notice that the DPP is appealing your sentence, contact us immediately. We will represent you as the respondent and argue against any increase to your sentence.

Interlocutory Appeals

In serious matters being heard in the County Court or Supreme Court, it is sometimes possible to appeal against a ruling made by the trial judge before or during the trial itself — for example, a ruling that a particular piece of evidence is admissible. This is called an interlocutory appeal and it goes to the Court of Appeal.

Interlocutory appeals are reserved for genuinely significant issues. The process involves two stages: first, obtaining certification from the trial judge that the issue meets the legal threshold; and second, obtaining leave from the Court of Appeal to proceed.

These are complex applications and not appropriate for routine rulings. We can advise you on whether a ruling in your trial is the kind of issue that warrants an interlocutory appeal.

How We Can Help

Whether you are considering an appeal or have just been notified that the DPP is appealing your sentence, the most important thing is to act quickly. Time limits are strict and missing them can affect your rights. We can:

  • Advise you honestly on whether your grounds of appeal are strong enough to pursue
  • Prepare and file the necessary notices and written materials
  • Brief specialist appellate counsel to argue your case in court
  • Represent you as a respondent if the DPP is seeking to increase your sentence
  • Make a bail application if you are in custody pending appeal

Frequently Asked Questions

How long do I have to appeal?

In most cases, 28 days from the date of your sentence. This applies whether you are appealing from the Magistrates’ Court or from the County or Supreme Court. Missing this deadline does not automatically end your rights, but you will need to apply for an extension and demonstrate exceptional circumstances. Contact us as soon as possible after sentencing if you think you may want to appeal.

What is the difference between a de novo appeal and a Court of Appeal proceeding?

A de novo appeal (from the Magistrates’ Court to the County Court) is a completely fresh hearing. The Judge hears all the evidence again and is not bound by what the Magistrate decided. A Court of Appeal proceeding is different — you must identify a specific legal error in the original trial or sentencing. The Court of Appeal does not simply re-hear the evidence from scratch.

Can my sentence be increased on appeal?

Yes, in some circumstances. In a de novo appeal from the Magistrates’ Court, if the prosecution is seeking a heavier sentence, the Judge must warn you before imposing one — at which point you can abandon the appeal. In the Court of Appeal, the DPP can also seek to increase a sentence. We will advise you on this risk before you decide whether to proceed.

What happens if my conviction appeal succeeds?

The Court of Appeal will set aside your conviction. It will then either order a new trial, enter an acquittal, substitute a conviction for a different (usually less serious) offence, or in rare cases enter a finding of not guilty by reason of mental impairment. The outcome depends on the nature of the error and the evidence in the case.

What if I just want to appeal my sentence, not my conviction?

You can appeal against sentence alone. In the Court of Appeal, this requires showing that the sentencing judge made a specific error — such as imposing a sentence that was manifestly excessive, or failing to take a relevant matter into account. We can review your sentencing remarks and advise you on whether arguable grounds exist.

Can I get bail while my appeal is being decided?

Possibly. If you are appealing from the Magistrates’ Court and are not in custody because of the sentence being appealed, your sentence is automatically stayed when you file your notice of appeal. If you are in custody, you can apply for bail pending appeal — the usual bail principles apply. We can make a bail application on your behalf. It is very rare to be bailed during an appeal from the County or Supreme Courts.

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