Part 5B Appeals to Land and Environment Court
In this Part:appellant means a person who appeals or applies for leave to appeal under this Part.
environmental offence means an offence against the environment protection legislation as defined in the Protection of the Environment Administration Act 1991.
informant includes a complainant, the Director of Public Prosecutions and any other person responsible for the conduct of a prosecution.
Judge means a Judge of the Land and Environment Court.
registrar means the registrar of the Land and Environment Court.
133X Application of Part generally
(1) In this Part, a reference to a sentence includes a reference to:(a) a fine or sentence imposed by a Magistrate, and(b) any order made by a Magistrate:(i) on the conviction or instead of a conviction of a person, or(ii) as punishment for any act or omission.(2) Subsection (1) (b) includes but is not limited to the following orders and decisions:(a) an order for compensation or forfeiture,(b) an order to pay any sum of money (whether for payment by any person of costs of a party or witness or for any other purpose),(c) an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(d) an order or a decision under section 9 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(e) a decision by a Magistrate exercising the jurisdiction of a Local Court under the Fines Act 1996 not to annul a fine enforcement order,(f) any other order or decision of any kind whatever made by a Magistrate with respect to a person dealt with for an offence (whether or not the person has been convicted) deferring passing sentence on the person and releasing the person subject to conditions or without conditions,(g) a decision within the meaning of section 42 (3) of the Children (Criminal Proceedings) Act 1987 made by a Magistrate exercising the jurisdiction of the Children’s Court in respect of an offence committed by a person.(3) This Part, to the extent to which it is not inconsistent with any other Act, applies to any order of a Magistrate made under another Act against which an appeal is provided under the other Act to the Land and Environment Court.(4) The provisions of this Part do not affect the provisions of the Home Detention Act 1996.(5) This Part does not apply to the exercise of ministerial functions by a Magistrate, except in relation to committal proceedings (as provided for by Division 3A).
133Y Application of Part to Justices
In this Part, a reference to a Magistrate includes a reference to any person (not being a Magistrate) who exercises the functions, powers or jurisdiction of a Justice or Justices conferred by this Act.
Division 2 Appeals by defendants and other persons
In this Division:appeal means an appeal under this Division.
application for leave to appeal means an application for leave to appeal under this Division.
133AA When an appeal can be made by a defendant or other person
An appeal against any conviction or order made, or sentence imposed, by a Magistrate in proceedings for an environmental offence may be made under this Division to the Land and Environment Court by the person against whom the conviction or order was made or on whom the sentence was imposed.
133AB Matters in which no appeal can be made
(1) Interlocutory orders
An appeal may not be made against any interlocutory order made by a Magistrate.(2) Dismissal
An appeal may not be made against the dismissal of an information by a Magistrate.(3) Costs awarded against informants
An appeal may not be made against a decision of a Magistrate not to make an order for costs against an informant.(4) Appeals under Division 3A
This section does not limit the making of an appeal under Division 3A.
(1) An appeal is to be made by lodging a written notice of appeal not later than 28 days after the conviction or order is made, or the sentence is imposed, by the Magistrate.(2) A notice of appeal must state the intention to appeal and the general grounds of appeal.(3) If an application is made to a Local Court under Part 4A, the time for lodging an appeal does not start to run until that application is finally disposed of.Note. Section 133AG sets out the manner in which an appeal is to be lodged.
133AD Matters in which an appeal can be made only with the leave of the Land and Environment Court
(1) An appeal may be made against a conviction entered after a guilty plea or in the absence of the defendant only with the leave of the Land and Environment Court.(2) An appeal may be made by a person who has not exhausted all rights of appeal under Part 4A only with the leave of the Land and Environment Court.(3) An application for leave to appeal is to be made by lodging a written application and a notice of appeal complying with section 133AC not later than 28 days after the conviction or order is made, or the sentence is imposed, by the Magistrate.Note. Section 133AG sets out the manner in which an appeal is to be lodged.(4) If an application is made to a Local Court under Part 4A, the time for lodging an application for leave to appeal does not start to run until the application under Part 4A is finally disposed of.(5) This section does not apply to an appeal against the severity of a sentence.
133AE Appeal may be made with leave outside time for giving notice of appeal
(1) A person who is entitled to appeal but who does not give notice of appeal or apply for leave to appeal within the time required by section 133AC or 133AD may apply, not later than 3 months after the conviction or order is made, or the sentence is imposed, by the Magistrate, to the Land and Environment Court for leave to appeal against the conviction, order or sentence.(2) An application for leave to appeal is to be made by lodging a written application, stating the reasons why the notice or application was not made within the time required, and a notice of appeal complying with section 133AC.
133AF Time for notices of appeal when more than one conviction or order involved
An appeal, or an application for leave to appeal, against a conviction or order made, or a sentence imposed, on the same day as another conviction, sentence or order involving the same person against which an appeal, or an application for leave to appeal, is made as required by this Division may be heard and determined by the Land and Environment Court even though the firstmentioned appeal or application was not made as required by this Division.
133AG Lodging notices of appeal and applications for leave to appeal
(1) A notice of appeal or an application for leave to appeal may be lodged with the clerk of any Local Court or the person in charge of the place at which the appellant is then held in custody.(2) A person with whom a notice of appeal or an application is lodged under this section must immediately forward a copy of it to:(a) the informant or any other party to the proceedings concerned, and(b) the clerk of the Local Court where the conviction or order was made or the sentence imposed, if the person is not that clerk.(3) Nothing in this section prevents a person with whom a notice of appeal is lodged under this section from giving a copy of the notice of appeal or application to any other interested person.(4) The clerk of a Local Court must, as soon as practicable after receiving a notice of appeal or an application for leave to appeal under this Division, transmit the papers, including a copy of any relevant order or conviction made by the Magistrate, to the registrar for keeping in the records of the Land and Environment Court.
133AH 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 District Court and section 133BC (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.
133AI Effect on appeal or application for leave to appeal of defect in notice or statement of grounds of appeal
(1) An appeal or an application for leave to appeal is not defeated merely because of a defect, whether of substance or form, in the notice of appeal or statement of grounds of appeal or application.(2) The Land and Environment Court may amend any such notice or statement or application if it is of the opinion that the notice or statement or application is capable of amendment and ought to be amended.(3) The amendment may be made subject to such conditions as to adjournment as the Land and Environment Court thinks just.
133AJ Powers of Land and Environment Court in determining applications for leave to appeal
(1) The Land and Environment Court may, after hearing an application for leave to appeal, dismiss the application or grant the application.(2) The Land and Environment Court must not grant an application for leave to appeal under section 133AE (relating to matters where notice of appeal or an application for leave to appeal was not given in time) unless it is of the opinion that it is in the interests of justice to grant the application.(3) The Land and Environment Court may make such order as to costs to be paid by the appellant as it thinks just if it dismisses an application for leave to appeal.
133AK Hearing of appeal after leave to appeal granted
After granting an application for leave to appeal, the Land and Environment Court may immediately proceed to hear and determine the appeal or may adjourn the appeal.
133AL When order dismissing application for leave to appeal may be vacated
The Land and Environment Court may by order vacate an order dismissing an application for leave to appeal because the applicant failed to appear, and any other order made as a consequence, if an application for vacation of the order is made within 12 months of the dismissal and the Land and Environment Court is of the opinion that it is in the interests of justice to grant the application.
133AM Appeal to be by way of rehearing
(1) An appeal is to be by way of rehearing on the transcripts of evidence heard before the Magistrate who made the conviction or order or imposed the sentence appealed against, except as provided by section 133AN.(2) For the purposes of subsection (1), a transcript is taken to be a correct transcript of a true record of evidence if the transcript is certified in the manner prescribed by the regulations.(3) On an appeal, new evidence may be given only with the leave of the Land and Environment Court, if the Court is of the opinion that it is in the interests of justice that the evidence be given.(4) A clerk of a Local Court must, at the request of an appellant or respondent, provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent.(5) The registrar is also required, at the request of an appellant or respondent, to provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent, if the registrar has been provided with a copy of the transcript by a clerk of the Local Court.Note. On receiving notice of an appeal the clerk of a Local Court is required to transmit the relevant papers to a registrar for keeping in the records of the Land and Environment Court (see section 133AG (4)).
133AN Circumstances when evidence to be given in person
(1) The Land and Environment Court may direct that a person attend to give evidence in person in appeal proceedings if the Court is of the opinion that there are reasonable grounds for deciding that, in the interests of justice, the witness should attend to give evidence.(2) An appellant or a respondent may apply for a direction under this section only if he or she has served on the other party, within such period as the Land and Environment Court may direct, a notice that the applicant wishes a specified witness to attend at the appeal proceedings.(3) A direction may be withdrawn only on the application, or with the consent, of the applicant.(4) If the Land and Environment Court refuses to give a direction, the Court must give reasons for the refusal.(5) The regulations may make provision for or with respect to the determination of reasonable grounds under subsection (1).(6) In particular and without otherwise limiting subsection (5), the Land and Environment Court is, in determining whether reasonable grounds exist, to have regard to whether or not the appellant was legally represented for the whole or part of the proceedings heard before the Magistrate.
133AO Powers of Land and Environment Court in determining appeals
(1) The Land and Environment 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,(b) increasing or reducing the sentence appealed against,(c) making such other orders as it thinks just.(2) In determining an appeal, the Land and Environment Court may exercise any function that the Magistrate who made the conviction or order might have exercised.(3) The Land and Environment Court may make such order as to costs to be paid by either party (including the Crown) as it thinks just, except as provided by section 133BE.
133AP When order dismissing appeal may be vacated
(1) The Land and Environment Court may by order vacate an order dismissing an appeal because the appellant failed to appear, and any other order made as a consequence, if:(a) within 12 months after the dismissal the appellant shows to the Land and Environment Court sufficient cause for the failure to appear, and(b) the Land and Environment Court is of the opinion that it is in the interests of justice to do so.(2) The order may be made subject to conditions specified in the order.(3) If an order is made, section 133AH applies to any order or sentence subject to the appeal.(4) No action lies against any person for anything done by the person in good faith, and without notice of the order, to enforce the conviction, order or sentence the subject of the dismissed appeal.
133AQ Notice of dismissal of application for leave to appeal or appeal
When an application for leave to appeal, or an appeal, is dismissed because the appellant fails to appear, the registrar must notify the appellant of:(a) the order of the Land and Environment Court dismissing the application or appeal, and(b) the appellant’s right under this Division to seek to have the order vacated within 12 months from the dismissal.
Division 3 Appeals by Crown against sentence
In this Division:appeal means an appeal under this Division.
133AS When the Crown may appeal against a sentence
(1) The Director of Public Prosecutions may appeal under this Division to the Land and Environment Court against any sentence imposed by a Magistrate in proceedings for an environmental offence if those proceedings have been instituted or carried on by the Director of Public Prosecutions.(2) The Environment Protection Authority may appeal under this Division to the Land and Environment Court against any sentence imposed by a Magistrate in proceedings for an environmental offence if those proceedings have been instituted or carried on by the Environment Protection Authority.
(1) An appeal is to be made by lodging a written notice of appeal not later than 28 days after the sentence is imposed by the Magistrate.(2) Despite subsection (1), an appeal against a sentence may be lodged later than the required time if the sentence was reduced because the defendant undertook to assist law enforcement agencies (within the meaning of the Criminal Records Act 1991) and the defendant failed wholly or partly to fulfil the undertaking.(3) A notice of appeal may be lodged with the clerk of any Local Court.(4) A clerk of a Local Court with whom a notice of appeal is lodged under this section must immediately forward a copy of it to:(a) any other party to the proceedings concerned, and(b) the clerk of the Local Court where the sentence was imposed, if the person is not that clerk.(5) Nothing in this section prevents a clerk of a Local Court with whom a notice of appeal is lodged under this section from giving a copy of the notice of appeal to any other interested person.(6) The clerk of the Local Court must, as soon as practicable after receiving a notice of appeal under this Division, transmit the relevant papers, including a copy of any relevant order or conviction made by the Magistrate, to a registrar for keeping in the records of the Land and Environment Court.
On an appeal, new evidence may be given with the leave of the Land and Environment Court, but may be given by the prosecution only in exceptional circumstances.
133AV Powers of Land and Environment Court in determining appeals
(1) The Land and Environment 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, varying, increasing or reducing the sentence appealed against,(b) imposing such sentence as may seem proper to the Court.(2) In determining an appeal, the Land and Environment Court may exercise any function that the Magistrate who imposed the sentence might have exercised.(3) The Land and Environment Court may make such order as to costs to be paid by either party (including the Crown) as to it seems just, except as provided by section 133BE.
Division 3A Other appeals to Land and Environment Court
A person may appeal under this Division to the Land and Environment Court as provided for by section 133AVB.
133AVB Land and Environment Court to have same jurisdiction as Supreme Court in relation to appeals on environmental offences
(1) The Land and Environment Court has the same jurisdiction and powers as the Supreme Court has under Part 5 to hear and dispose of proceedings on appeal against any conviction or order made, or sentence imposed, by a Magistrate in summary proceedings for an environmental offence.(2) Accordingly, an appeal may be made by a person to the Land and Environment Court against any conviction or order made, or sentence imposed, by a Magistrate in summary proceedings for an environmental offence on any ground that the person would be able to appeal the conviction, order or sentence under section 104.Note. Section 104 allows appeals to be made on a question of law against interlocutory orders and orders in relation to committal proceedings (among other things).(3) The provisions of Division 2 of Part 5 (section 104A excepted) apply in respect of appeals made to the Land and Environment Court under this Division, in the same way as they apply to appeals made to the Supreme Court under that Division, with any necessary modifications.(4) For the purpose of applying those provisions, references to the Supreme Court are to be read as references to the Land and Environment Court.
133AVC How appeal to be made and conducted
(1) An appeal under this Division is to be made and conducted in accordance with the rules of the Land and Environment Court.(2) An appeal is to be made within such period after the date that the relevant conviction or order is made, or the sentence is imposed, as may be prescribed by the rules of the Land and Environment Court.
Division 4 General provisions relating to appeals and applications for leave to appeal
In this Division:appeal means an appeal under this Part.
application for leave to appeal means an application for leave to appeal under this Part.
133AX General powers of Land and Environment Court
Without limiting any powers of the Land and Environment Court under the Land and Environment Court Act 1979, the Land and Environment Court may do any one or more of the following:(a) specify the sitting at which the hearing of an appeal or application for leave to appeal is to be heard or continued,(b) adjourn the hearing of an appeal or application for leave to appeal.
133AY Rules for procedures for appeals and applications
(1) The rules of the Land and Environment Court under the Land and Environment Court Act 1979 may make provision for or with respect to the procedure to be followed as regards appeals or applications for leave to appeal.(2) Without limiting subsection (1), the rules may make provision for or with respect to the following:(a) when an appeal or application must be heard,(b) notice of appeals, applications and hearings,(c) notice of dismissal of appeals or applications,(d) service of process and other documents.
133AZ Appeal or application may be heard when notice not given as required
The Land and Environment Court may proceed to hear and determine or otherwise dispose of an appeal or application for leave to appeal despite any error in, or non-service of, a notice of appeal or other notice if it is satisfied that each party had knowledge of the time and place fixed for the hearing and was not prejudiced by the error or non-service.
133BA Errors in form or law not of themselves to enable appeal success
(1) The Land and Environment 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 Land and Environment 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 Land and Environment Court may:(a) amend the conviction or order 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.(3) If the Land and Environment Court remits a matter to a Magistrate under this section 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.
133BB Withdrawal of appeals and applications
(1) An appeal or application for leave to appeal may at any stage be withdrawn by the appellant with the leave of the Land and Environment Court.(2) In giving leave for an appeal or application for leave to appeal by an appellant to be withdrawn, the Land and Environment Court may make such orders as are necessary to place the appellant as nearly as possible in the same position as if the appeal or application had not been made.(3) Any order made by the Land and Environment Court in respect of an appeal or application that is withdrawn is taken to be an order made by the Magistrate who made the conviction or order or imposed the sentence that gave rise to the appeal.
133BC Court may confirm conviction, order or sentence with effect from an earlier day
(1) The Land and Environment 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.
133BD Effect on recognizances of confirmation of conviction, order or sentence
(1) If the Land and Environment Court confirms a conviction, order or sentence on an appeal, any recognizance that the appellant was required to enter into by the original conviction, order or sentence and any sureties, have effect according to the terms of the recognizances, except to the extent to which the Land and Environment Court otherwise directs.(2) The recognizance has effect even though a stay of execution may have been in force in respect of the sentence appealed against.
133BE Limit on circumstances when costs may be awarded against a public informant
(1) Costs are not to be awarded in favour of an appellant whose conviction is quashed or set aside unless the Land and Environment Court is satisfied as to any of the following:(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the informant in an improper manner,(c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought,(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the informant, it is just and reasonable to award costs.(2) This section does not apply to the awarding of costs against a respondent acting in a private capacity.
133BF Land and Environment Court’s powers on appeals relating to sentences and orders
(1) The Land and Environment Court may not vary, increase or reduce a sentence so that the sentence as varied, increased or reduced could not have been imposed by the Magistrate concerned.(2) The Land and Environment Court may not make an order or impose a sentence that could not have been made or imposed by the Magistrate concerned.(3) Any sentence varied, increased or reduced or imposed by the Land and Environment Court, or any order made by the Land and Environment Court under this Part, has the same effect and may be enforced in the same manner as if it were made by a Magistrate.
If the Land and Environment Court orders an appellant or a respondent to pay costs under this Part, or makes any other order for the payment of money under this Part, the Land and Environment Court must:(a) direct that the costs or other amount be paid to the clerk of the Local Court where the matter the subject of the appeal or application for leave to appeal concerned was originally heard, and(b) state a time within which the costs or other amount must be paid.
133BH Evidence of quashing of conviction or order
(1) If a conviction or order is quashed or set aside on an appeal, a memorandum to that effect must be endorsed forthwith on the conviction or order by the Registrar of the Land and Environment Court or by another proper officer.(2) If a certificate of the conviction or order is given at any time, a copy of the memorandum is sufficient evidence that the conviction or order has been quashed or set aside.
(1) No application to quash or vary any conviction, order or sentence of a Magistrate that could be the subject of an appeal under this Part may be made to the Land and Environment Court except by way of appeal as provided by this Part.(2) No appeal may be made to the Land and Environment Court under this Part from a decision of the Land and Environment Court under this Part.(3) There is no appeal to the Land and Environment Court under this Part if there is an appeal to the Supreme Court as referred to in section 113.