Abolition of De Novo Appeals (Vic)

As of 1 July 2021, de novo appeals will be abolished in Victoria. Following 1 July 2021, an appeal from the Magistrates Court of Victoria to the County Court of Victoria will no longer be considered ‘afresh’ and will now require the court to consider the material from the initial Magistrates Court hearing when considering an appeal. These changes are designed to streamline the appeal process and to also minimise the recalling of witnesses to give evidence where possible.

Following the introduction of the new process, the Court of Appeal has also been provided the power to refer matters to the Supreme Court or County Court for the making of certain determinations during an appeal or application for leave to appeal matters that are being considered by the Court of Appeal. The change in law has also introduced a second or subsequent right of appeal against conviction in specific circumstances (such as where new or fresh evidence has emerged). 

What is a De Novo Appeal?

A De Novo (‘start from the beginning’) appeal allows a person to challenge their conviction or sentence through a new hearing in an appellant court. Prior to 1 July 2021, a person who received a conviction and/or sentence in the Magistrates Court or Children’s Court could file an appeal with a suitable court of higher jurisdiction (most commonly, the County Court of Victoria).

At the time of the appeal being heard, the County Court would previously hear all submissions and evidence in the matter again (afresh and without hearing the recording or other material from the original hearing) and reach a decision. This essentially resulted in an appeal being heard by the County Court ‘afresh’ or like a new hearing.   

De Novo Appeals: What are the key differences under the new legislation?

As of 1 July 2021, de novo appeals will be abolished and the evidence and submissions to the court will no longer be heard ‘afresh’. These changes apply to all appeals filed after 1 July 2021. The change in law and process attempts to streamline the appeal process (making appeals from the Magistrates and Children’s Courts similar in process to appeals in higher courts. 

After 1 July 2021, the appeal system for matters that were initially determined in the Magistrates’ Court and Children’s Court, has been altered by, among other things:

1. In circumstances where the defendant entered a plea of guilty or did not appear at the time that they were convicted and sentenced, they are now required to apply for leave (permission) from the court to appeal if they are seeking to appeal against conviction (a finding of guilt).
2. For matters in the Magistrates Court, where a person did not appear at the time that they were convicted and sentenced, they must first seek permission from the court to have the matter re-heard by that court.
3. An application for leave must be filed within 28 days of the date of conviction and must be served on the respondent (usually the prosecution) within 7 days of being filed. 
4. The application must state the nature of the appeal and the circumstances of the appeal (i.e. whether the application for leave to appeal related to a conviction following a plea of guilty being entered, and information dictated by the relevant court rules).
5. Allowing a matter to be sent back to the Children’s Court (where appropriate) for reconsideration with or without a direction in law.
6. Requiring defendants seeking a matter to be considered by way of appeal (other than those that require leave to appeal) to file a Summary of Appeal Notice, outlining the grounds for the appeal, within 28 days of the filing of their Notice of Appeal. 
7. Limiting the reconsideration of the evidence given at the summary hearing and only allowing consideration of new evidence where the court deems this to be in the interests of justice.
8. Imposing a threshold condition that the County Court must only allow an appeal against sentence in circumstances where the court is satisfied that there are compelling reasons for imposing a new sentence. When making this determination, the court must consider the sentencing remarks and considerations of the sentencing Magistrate. 

After 1 July 2021, the consideration of appeals will be determined by the court in the following manner. 

Conviction appeals

Conviction appeals will be determined on the transcript of evidence and submissions made during the original hearing. Under the new framework, the County Court or Supreme Court (where suitable and appropriate) may consider further evidence only where the court considers this is in the interests of justice, which will be determined by the judge. The appellant will be denied the chance to examine, cross-examine or call new witnesses, without first obtaining leave of the court. If a person seeks to call evidence from a new witness, they must first satisfy the court that the calling of the new evidence is in the interests of justice. 

Sentence appeals

Sentence appeals may only be determined on the evidence and materials before the original court (i.e. before the Magistrates Court at the initial sentencing). Appeals on sentence will only be considered in the event that the County Court determines that there is a ‘compelling reason’ for imposing a different sentence.

A person seeking to appeal their sentence will have to satisfy the court that the sentence imposed was manifestly excessive for an appeal to be considered. In this regard, there is a greater importance placed on making sure that the plea in the Magistrates Court has been properly prepared and that all relevant evidence is provided to the court at the initial plea. 

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