Chapters

When to Appeal

An appeal may be made against a magistrate's decision to the Supreme Court. This can be done either against conviction or against the severity of the sentence. The appeal must be made within 21 days of conviction or sentence, though this period can be extended by making an application to the Supreme Court which satisfactorily explains the delay (s107, Justices Act 1959 (Tas)).

In special circumstances, the Supreme Court may grant a re-hearing (s111). In other circumstances, a case in the Court of Petty Sessions may be transferred to the Supreme Court as a ‘case stated’ if an important question of law is involved (s114).

Deciding Whether to Appeal

A defendant can appeal against conviction on either an error of fact (for example, that the evidence was wrongly interpreted) or on a question of law (for example, that the evidence could not legally justify conviction). Success may result in either the quashing of a conviction, or an order that the matter be re-heard properly by another magistrate. If the defendant does not wish to deny that they were properly convicted of the offence, but feel that the sentence given was too harsh, they can appeal against severity only. In this case, the hearing will be restricted to evidence and submissions which affect the sentence. If the defendant is in doubt about whether they should appeal against their conviction, or against the severity of their sentence only, they should get legal advice.

There are two drawbacks to appeals.

  • Persons appealing may be ordered to pay some costs if they lose their appeal. If the person appealing is concerned about that possibility, they should consult a lawyer.
  • A supreme court judge has the power to increase the sentence when hearing the appeal. They cannot give a longer sentence than the magistrate could have given under the particular Act, but they can give a sentence longer than the magistrate actually imposed.

How to Appeal

It is best to obtain legal assistance to make an appeal. A ‘notice to review’ is lodged with the Supreme Court, and copies are served on the Magistrates Court (Criminal Division) and the Director of Public Prosecutions who act on behalf of the police complainant. Where a penalty has been imposed by a magistrate, an application may have to be made to ‘stay’ that penalty pending the hearing of the appeal. This will involve, for instance, an application for suspension of a prison sentence or period of licence disqualification.

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