Chapter 6 – Appeals and Cases Stated - Part 6.1 – Appeal from Magistrates' Court to County Court Flashcards
S254 right of appeal
(1) Person convicted of offence by MC per Pt 3.3 can appeal to CC against (a) conviction/sentence or (b) just sentence
(2) BUT if MC was constituted by the chief magistrate who is a dual comm-holder, appeal is to be made to Trial Division of SC
S255 How appeal is commenced (file 28 days after sentence, then serve within 7 days; conv/sent or sent only; acknowledgment; undertaking)
(1) by filing NoA with MC registrar at any venue within 28 days after day on which MC sentence was imposed
(2) copy must be served on resp. per s 392 in 7 days post filing
(3) Notice of appeal must (a) state if ats. Conv/sent or just sent, and (b) be in presc. Form
(4) must include signed prescribed statement from appellant acknowledging more severe sentence than original could be imposed on appeal
(5) also include signed undertaking in manner prescribed by CC/SC rules (a)/(ab) to proceed with appeal and appear for duration AND (b) give written notice without delay to registar of CC or Proth. of SC of any change of address of appellant from that appearing in NoA
(6) before accepting NoA, MC registrar must (a) give notice to effect sentence that could become more severe (b) if person filing is not the appellant, be satisfied that appellant signed statement (7) must transmit NOA to CC or SC as required
S256 Determination of appeal
(1) Appeal must be conducted as re-hearing and appellant not bound by plea entered in MC (2) on hearing of appeal, CC/SC (a) must set aside MC sentence, (b) may impose any sentence court considers appropriate that MC imposed/ could have imposed (c) exrcise any MC powr the MC exercised/could have exercised
(3) on hearing of appeal under s254, court warn the appellant asap during the hearing that sentence could be more severe than that imposed by the MC (4) can backdate sentence to date not earlier than that of MC sentence (5) sentence imposed per (2) regarded as CC/SC sentence for all purposes
S257 DPP’s right of appeal against sentence
(1), subject to (1A), the DPP may appeal to CC against sentence imposed by MC in Pt 3.3 proceeding if satisfied appeal should be brought in the public interest
(1A) if MC was Chief Mag as DCH, appeal to TD of SC
(2) no further appeal against CC or SC sentence as case requires
S258 How appeal is commenced
(1) file NoA with MC registrar anywhere post-28 days after day on which sentence imposed (2) serve personally per 391 within 7 days after filing (3) NoA must (a) state general grounds of appeal (b) be prescribed form (4) must provide NoA copy to last LP who represented respondent, if can reasonably be identified
(5) must transmit NOA to CC or SC as required
S259 Determination of DPP’s appeal
(1) An appeal under s 257 must be conducted as a rehearing and the respondent is not bound by the plea entered in the MC.
(2) just like s256(2) (3) in sentencing, court must ignore double jeopardy to avoid imposing less severe sentence than the court would otherwise consider appropriate (4) and (5) like s256
S260 – DPP’s right of appeal—failure to fulfil undertaking
(1) w/o limiting s257, DPP may appeal to CC against sentence imposed on person convicted of IOTS if (a) sentence was less severe because of undertaking to assist law enforcement in investigating or prosecuting offence, AND
(b) DPP considers person failed wholly/partly to fulfil undertaking
(1A) if MC was CM who is DCH, appeal to TD of SC (2) DPP may bring an appeal any time, whether or not sentence served (3) DPP must not bring further appeal ats. CC/SC sentence
S261 – how appeal is commenced
(1) by filing NoA, signed by DPP personally, with MC registrar at any MC venue (2) serve personally per s 391 within 14 days after filing (3) in prescribed CC/SC form (4) must provide NoA copy to last LP who represented respondent, if can reasonably be identified (5) must transmit NOA to CC or SC as required
S262 Determination of DPP’s appeal—failure to fulfil undertaking
(1) Appeal per s 360 not a re-hearing (2) If SC or CC considers respondent failed undertaking (a) may set aside sentence and (b) impose appropriate sentence, given the failure
(3) ignore double jeopardy leniency pull
S263 Late notice of appeal deemed to be application for leave to appeal
(1) late notice deemed to be application for leave to appeal
(2) CC/SC can grant leave if (a) court considers delay was due to EC, and (b) satisfied respondent case won’t be materially prejudiced because of delay (3) if no leave granted, must strike out appeal
(4) (a) if appeal struckout per (3), (b) appellant had been sentenced to imprisonment/detention term, CC registrar or SC Proth can issue warrant to imprison appellant and may recal/cancel that warrant
(5) if struckout (a) MC sentence is reinstated and enforceable as if there was no appeal, but for penalty enforcement purposes, time deemed not to have run during any stay (b) CCreg, SCProth must give respondent or their LP copy of strikeout order, (c) the strike out order discharges undertaking to proceed with appeal
S264 Stay of sentence
(1) if appellant appeals ats. Sentence and is not in custody b/c of, appeal operates as stay of sentence when NoA filed and undertaking signed
(2) if in custody, appeal operates as stay when (a) files NoA and signs undertaking and (b) appellant enters bail, if granted per 265
S265 Bail pending appeal
(1) if appellant is in custody because of sentence appealed against and wishes to be released pending appeal, appellant
(a) can apply for bail (b) must then give reasonable notice of that application to respondent
(2) MC must then grant or refuse bail as if appellant accused of offence and were being held in custody in relation to it – Bail Act applies with necessary mods
S266 abandonment of appeal
(1) subject to (2) and (3), appeal may be abandoned by filing notice of abandonment, in prescribed form
(2) if appealing ats conviction+sentence and abandons conviction appeal, must give written notice to court/respondent of such (3)person who sentenced to imprisonment but not in custody can abandon (a) by surrendering to registrar/Proth and (b) filing notice (3A) If person surrenders, warrant to imprison must then issue by registrar/proth
(4) if appellant abandons, court must strike out appeal
(5) on strikeout (a) MC sentence reinstated and may be enforced as if no appeal made, but no time deemed to have run during stay for penalty purposes; (b) registrar/proth must give to resp or their LP the strikeout order (c) order discharges appellant undertaking (6) strike-out can’t be set aside
S267 Appellant’s failure to appear
(1) on failure of appellant to appear (other than of DPP), CC/SC may (a) strike-out the appeal (b) adjourn on any terms thought appropriate
(1A)(a) if strikeout by SC or CC, (b) and there was prison sentence, registrar/proth can issue imprison warrant and may recall/cancel warrant
(2)(a)-(c) like 266(5)(a)-(c) directly above
(3) court may at any time set aside strikeout order if appellant satisfied court that failure was not due to their fault/neglect
(4) can make that (3) application at any time on notice served on respondent a reasonable time before making app
(5) the above is served like NoA
(6) if court grants, (a) can order reinstatement subject to any costs, may require appellant to give further undertaking (6A) can apply for bail (7) on reinstatement, appeal operates as stay on signing of undertaking and entering of bail
S268 Respondent’s failure to appear on appeal by DPP
(1) if respondent to appeal by DPP fails to appear at listed time, SC or CC (a) can adjourn OR (b) if satisfied notice of appeal was given, hear and determine appeal in respondent’s absence (can’t make sentence requiring their consent, like a CCO)
(2) if CC/SC adjourns and satisfied notice of appeal was given, can issue warrant to arrest and bring respondent before judge
