This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Appealing Against A Magistrates Court Decision


If a person is found guilty and sentenced by the Magistrates Court of Western Australia and they feel the decision was wrong at law, they should consider appealing the decision. Criminal appeals are applications to a higher court asking the higher court to review the decision made by a lower court. A person can appeal against a verdict, the sentence imposed on them, or both.

The defence commonly appeals against a finding of guilty or against a sentence that it thinks was too severe. The prosecution can also appeal, but this is less common. The prosecution may appeal against a person’s acquittal or against a sentence that it thinks was too lenient. 

Criminal appeals in Western Australia are governed by the Criminal Appeals Act 2004.

Time limit

When a party appeals against a magistrate’s decision, they appeal to the Supreme Court of WA. The appeal must be lodged within the time limit, which is 28 days from the date of the Magistrate’s decision.

If this time limit is missed, an affidavit setting out why the Appeal Notice was not lodged on time must be lodged with the court. The court will then consider whether the appeal should be allowed to proceed despite being lodged out of time. 

Lodging your appeal notice

The appellant must lodge a Form 1 Appeal Notice (Criminal) (Form 1) with the Supreme Court to initiate an appeal. A completed Form 1 gives the court all the information it needs to know in order to decide whether the appellant should be granted leave to appeal, including the grounds on which they are appealing the decision of the Magistrates Court.

Under the Criminal Appeals Actleave to appeal is required in all cases and must be granted in relation to each separate ground of appeal the appellant has set out in a Form 1.

Grounds of appeal

Criminal appeals must be argued on grounds of appeal which are accepted at law. The following are examples of common grounds of appeal in an appeal against a conviction:

  • The Magistrate did not have all the evidence needed to make the decision he or she made;
  • The Magistrate relied on evidence that was inadmissible;
  • The Magistrate allowed evidence to be adduced that was unlawfully or unfairly obtained;
  • The Magistrate did not provide adequate reasons for their decision;
  • The Magistrate made a procedural error;
  • The Magistrate included something that the accused said involuntarily said to the police (when they were intimidated, pressured, tricked and/or threatened);
  • The Magistrate chose not to hear certain evidence that should have been heard;
  • Since the verdict was delivered, new evidence has become available.

The following are examples of common grounds of appeal against a sentence:

  • The Magistrate made an error or overlooked a fact when deciding on the sentence;
  • Compared to similar matters, the sentence is unreasonably harsh;
  • The Magistrate did not take into account relevant factors, such as the time the defendant had spent in custody on remand, that they entered a plea of guilty at the earliest opportunity or any payment of compensation;
  • The Magistrate overlooked other alternate and more appropriate sentences;
  • The Magistrate failed to make an order for parole when they were required to do so.

Preparing an appeal

The Appellant has 35 days from the date the Form 1 is filed in their matter to lodge a Form 7 Appellant’s Case (Form 7). The Form 7 requires the following:

  1. Appellant’s Grounds of Appeal;
  2. Appellant’s Submissions;
  3. Appellant’s Legal Authorities (binding or persuasive decisions by courts);
  4. Orders Sought;
  5. Draft Chronology; and
  6. Draft Appeal Book Indexes.

These attachments together set out the appellant’s case for the court. The court then refers the Appellant’s Form 7 to a Single Judge of Appeal. The judge may do any of the following:

  • grant or refuse the application for leave to appeal;
  • make orders for the matter to proceeds through the court or to a Mention Hearing;
  • refer the Application for Leave to the Court of Appeal;
  • review the matter later.

In response to the Form 7, the respondent will lodge a Form 8 Respondent’s Answer which will set out the prosecution case and respond to the appellant’s case.

Court registrar inspects and settles

Once the court has both parties’ cases before it, a Registrar of the court will settle the draft Appeal Book Indexes, He or she will also have the final say on what is and is not included in the Appeal Book so that the final Appeal Book will contain only what is relevant to the Application.

Prepare the appeal book

The appeal book is the document that the Court of Appeal has before it when it hears the Application. It is often up to the appellant to prepare the Appeal Book.

The preparation of an appeal book is technical and must meet the court’s criteria. The preparation of Appeal Books is governed by the Supreme Court (Court of Appeal) Rules 2005 (WA) Division 3.

Attend court hearing

Once the appeal book is accepted by the court, the court will issue a Notice to advise the parties of the hearing date. The hearing is before the Supreme Court of Western Australia Court of Appeal which is made up of three judges.

At the appeal hearing, the court will generally deal with the Appellant’s Application for Leave and the Appeal at the same time.

If the court is not persuaded that the Appellant should have leave to appeal, it will dismiss the appeal. If the court grants leave to appeal, it will then proceed to hear the appeal. The court will hear arguments from both parties in relation to whether the Appeal should be granted.

When dealing with criminal appeals, the court will often reserve its decision. By reserving the decision, the court gives itself more time to consider the arguments advanced and documents included in the Appeal Book. If the decision is reserved, it will be handed down at a later date.

Judgment

When the court has reached a decision about the appeal and prepared a written judgment, the parties will be given notice of a court hearing. At this hearing, the court will hand down its decision.

If you require legal advice in relation to a criminal appeal or in any other legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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