Division 2Division 2 Appeals to Supreme Court
104 When an appeal can be made by a defendant or other person
(1) Appeals by defendants
A person against whom any conviction or order was made, or sentence was imposed, by a Magistrate in summary proceedings may appeal under this Division to the Supreme Court on any of the following grounds:(a) a ground that involves a question of law alone,(b) a ground that involves a question of mixed law and fact, but only with the leave of the Supreme Court,(c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence.This subsection does not apply in respect of an order that is made in relation to committal proceedings or an interlocutory order.
(2) Appeals by informants
An informant may appeal under this Division to the Supreme Court against the following, on a ground that involves a question of law alone:(a) an order made by a Magistrate that stays summary proceedings for the prosecution of an offence,(b) an order made by a Magistrate in summary proceedings dismissing an information or complaint,(c) an order for costs made by a Magistrate in summary proceedings,(d) a sentence imposed by a Magistrate in summary proceedings.(3) Appeals in relation to committal proceedings
A defendant or an informant may appeal under this Division to the Supreme Court against any order that is made in relation to committal proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.(4) Appeals in relation to interlocutory orders
A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.(5) Appeals by parties to civil proceedings
A party to any proceedings under the Local Courts (Civil Claims) Act 1970 may appeal under this Division to the Supreme Court as provided for by section 69 of that Act.(6) Appeals concerning orders under the Crimes (Forensic Procedures) Act 2000
An appeal under this Division on a ground that involves a question of law alone may be made to the Supreme Court:(a) against an order (other than an interim order) made by a Magistrate under the Crimes (Forensic Procedures) Act 2000 authorising the carrying out of a forensic procedure on a person, or(b) against the refusal of a Magistrate to make such an order.
104A Appeals in relation to environmental offences to be heard only with leave
(1) Despite section 104, a person may not appeal to the Supreme Court against a conviction or order made, or sentence imposed, by a Magistrate in proceedings relating to an environmental offence, except with the leave of the Supreme Court.(2) The Supreme Court is to give such leave only if it is of the opinion that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application.Note. Appeals in relation to environmental offences may be made to the Land and Environment Court (see Division 3A of Part 5B). Section 72 of the Land and Environment Court Act 1979 allows the Supreme Court to transfer proceedings to the Land and Environment Court.
106 How appeal to be made and conducted
(1) An appeal is to be made and conducted in accordance with the rules.(2) An appeal is to be made within such period after the date that the relevant conviction or order is made, or the sentence imposed, as may be prescribed by the rules.
107 Stay of execution of conviction, order or sentence pending appeal
(1) The execution of a sentence imposed as a consequence of a conviction, or of any other order, is stayed when a notice of appeal is given in accordance with this Division.(2) Subsection (1) does not apply to an appellant who is in custody when the appeal is made unless and until the appellant enters into a bail undertaking in accordance with the Bail Act 1978, or bail is dispensed with.(3) The stay of execution continues until the appeal is finally determined, subject to any order or direction of the Supreme Court and section 111 (3).(4) Despite subsection (1), any period during which the stay is in force is not to be taken into account when calculating the length of a period of disqualification from holding a driver licence resulting from a conviction under the road transport legislation within the meaning of the Road Transport (General) Act 1999.(5) An application for leave to appeal does not result in a stay of execution under this section.(6) In this section, a reference to an appellant who is in custody includes a reference to person who is the subject of an order for periodic detention under the Periodic Detention of Prisoners Act 1981 or a home detention order within the meaning of the Home Detention Act 1996.
108 Powers of Supreme Court to review stays of execution of sentences
(1) An informant may apply to the Supreme Court for a review of a stay of execution under section 107.(2) The Supreme Court may, on application being made under this section by an informant, order that a stay of execution under section 107 is to cease to have effect in relation to a sentence, but only if the informant satisfies the Court that the appellant has unduly delayed the appeal proceedings.
109 Powers of Supreme Court in determining appeals
The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:(a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it,(b) increasing or reducing the sentence appealed against,(c) making such other orders as it thinks just,(d) remitting the matter to the Magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal.
110 Errors in form or law not of themselves to enable appeal success
(1) The Supreme Court is not to quash or set aside a conviction, order or sentence on an appeal merely because of:(a) an omission or mistake in the form of the conviction or order, or(b) any error in law in the order or sentence,if it appears to the Supreme Court that there were sufficient grounds before the Magistrate to have authorised a conviction, order or sentence free from the omission, mistake or error.(2) In any such case, the Supreme Court may:(a) amend the conviction, order or sentence and determine the appeal as if the omission, mistake or error did not exist, or(b) remit the case to the Magistrate to make the conviction or order, or impose the sentence, authorised by law and to amend the conviction, order or sentence accordingly.
111 Supreme Court may confirm conviction, order or sentence with effect from an earlier day
(1) The Supreme Court may order that a conviction, order or sentence confirmed or varied by it on appeal, or any part of it:(a) is to take effect on and from a day specified in the order, or(b) in the case of a sentence that has been served in part, is to recommence on and from a day specified in the order,being the day the order is made or an earlier day.(2) The order has effect even though a stay of execution may have been in force in respect of the sentence appealed against.(3) Any time spent in custody by an appellant pending the determination of an appeal counts as part of any sentence imposed on the appellant in relation to the matter on appeal.(4) Despite subsections (1) and (2), any period during which a stay of execution was in force in respect of a conviction under the road transport legislation within the meaning of the Road Transport (General) Act 1999 is not to be taken into account when calculating the length of a period of disqualification from holding a driver licence resulting from the conviction.
112 Appeals relating to certain traffic offences committed by children
(1) An appeal may be made in respect of a traffic offence committed by a child:(a) by the child concerned, or(b) if the child is under 18 years, on the child’s behalf and in the child’s name, by a person responsible for the child or the child’s counsel, or(c) if the child is in the care or custody of the Minister administering the Children (Care and Protection) Act 1987 or the Director-General of the Department of Community Services, by that Minister or the Director-General on behalf of the child.(2) In this section:child means a person who was under 18 years when the traffic offence was committed and under 21 years when summary proceedings for the offence were commenced.
person responsible for a child has the same meaning as in the Children (Care and Protection) Act 1987.
traffic offence means an offence arising under a provision of:
(a) the road transport legislation within the meaning of the Road Transport (General) Act 1999, or(b) the Roads Act 1993, or(c) the Motor Vehicles (Third Party Insurance) Act 1942, or(d) the Recreation Vehicles Act 1983, or(e) any other Act prescribed for the purposes of this definition,in respect of the use, standing or parking of a motor vehicle within the meaning of that provision.
(1) A person may not appeal to the District Court or the Land and Environment Court against a conviction or order made, or a sentence imposed, by a Magistrate in summary proceedings if the person has instituted an appeal to the Supreme Court against the conviction, order or sentence.(2) A person’s right of appeal to the District Court or Land and Environment Court under this Act is not affected by subsection (1) if:(a) the person instituted an appeal to the Supreme Court against a conviction or order made, or a sentence imposed, by a Magistrate in summary proceedings, and(b) the Supreme Court:(i) remitted the matter on appeal to the Magistrate to hear and determine and the Magistrate has heard and determined the matter, or(ii) refused leave to appeal on a question of mixed law and fact, or(iii) refused leave to appeal in proceedings relating to an environmental offence.(3) A person may not appeal to the Supreme Court under this Division against any interlocutory judgment or order that may be appealed to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912, if the person has instituted an appeal to the Court of Criminal Appeal under that section.
114 Circumstances where Magistrate unable to hear matter
If the Supreme Court remits a matter to a Magistrate under this Part and the Magistrate who made the original conviction or order, or imposed the original sentence, has ceased to hold office as a Magistrate or is for any other reason unable to continue to hear and determine the remitted matter, the matter is to be dealt with by another Magistrate nominated by the Chief Magistrate.