Division 2Division 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.