Can you appeal a Magistrates’ Court decision to the County Court?
Yes, in most criminal matters you have a right to appeal a Magistrates’ Court decision to the County Court. That right is set out in section 254 of the Criminal Procedure Act 2009 (Vic), and it is one of the most important safeguards in the system, because it gives you a second chance in a higher court if the magistrate got it wrong. The appeal is not a favour the court grants, it is a right you exercise, provided you do it properly and on time.
What can you appeal: conviction, sentence, or both?
You can challenge the finding of guilt, the penalty, or both, and the choice matters. A conviction appeal argues you should not have been found guilty at all, while a sentence appeal accepts the finding of guilt but argues the penalty was too harsh. Which path fits depends on what actually went wrong below, and our guide on appeal against conviction or sentence works through that decision in detail. Choosing the wrong target, or appealing both without a clear reason, can weaken an otherwise good case, so this is a decision to make with advice rather than in haste.
How long do you have to appeal to the County Court?
You have 28 days from the Magistrates’ Court decision, and the deadline is strict. Under section 255 of the Criminal Procedure Act 2009, a notice of appeal must be lodged within 28 days of the day you were sentenced, and that period runs from the decision itself, not from the moment you decide you are unhappy with it.
Miss the 28 days, and you are not automatically shut out, but you must apply to the County Court for an extension of time, and you will need to show a good reason for the delay and that the prosecution is not unfairly prejudiced.
Extensions are granted, but they are never guaranteed, which is why the single most important thing you can do after a bad result is get advice straight away. When deciding an extension, the County Court looks at how long the delay was, why it happened, whether you always intended to appeal, and the strength of the proposed appeal, so a short delay with a good explanation and solid grounds is treated very differently from a long, unexplained one.
How does a County Court appeal actually work?
It is heard afresh, which surprises people who expect a paperwork review. Under section 256 of the Criminal Procedure Act 2009, an appeal is conducted as a rehearing, and the appellant is not bound by the plea entered in the Magistrates’ Court. In plain terms, the County Court judge does not simply read what the magistrate did and check it for error, the judge hears the case again and reaches their own decision.
What being heard as a rehearing means for you
It means the case is genuinely live again, with real opportunities and real risks. Because it is a rehearing, evidence can be given afresh, witnesses can be called, and you can even change your plea, for example from guilty to not guilty, although the prosecution can point to the earlier plea.
The prosecution runs its case again too, often through the police prosecutor or the Office of Public Prosecutions, and the same witnesses may be required to attend. That second chance is exactly why appeals from the Magistrates’ Court can be so valuable, because a self-represented person who was overwhelmed the first time, as many are, can come to the County Court properly prepared, a contrast our guide on representing yourself in the Magistrates’ Court makes plain.
This is a powerful feature, because problems that sank you in a rushed Magistrates’ Court hearing can be fixed with proper preparation the second time around, a point our guide on changing your plea after pleading guilty explores.
It is worth knowing that Victoria’s appeal system has been the subject of reform, and legislation has been passed to move these appeals toward a model based more on the original hearing, but the commencement of that change has been repeatedly deferred, so the current position remains a rehearing. Because this is an area that can shift, it is exactly the kind of thing to confirm with a lawyer before you rely on it.
Can the County Court increase your sentence?
Yes, and this is the risk that catches people out. Under section 256(3) of the Criminal Procedure Act, the County Court can impose a sentence that is more severe than the one the magistrate gave you, not just a lighter one or the same. There is an important protection built in, because the judge must warn you if they are considering a heavier penalty, which gives you the chance to abandon the appeal before that happens.
That warning is your off-ramp, and knowing how to read the room and take it is part of why experienced representation matters on appeal. Going in blind, without an honest assessment of whether your sentence could actually get worse, is one of the most common and costly mistakes in the whole process. Whether your sentence is genuinely at risk depends on how the magistrate’s sentence compares with the usual range for the offending. A sentence that was already lenient has more room to move upward, while one that was stern for what you did has less, and a careful appeal is built on that assessment from the start, so you know before you lodge whether you are appealing from a position of strength or exposing yourself to a worse result.
What do you need to win an appeal?
A reason the outcome should change, not just unhappiness with it. Because the County Court hears the matter again, a conviction appeal usually succeeds where the evidence, properly tested, does not prove the charge beyond reasonable doubt, and a sentence appeal succeeds where the penalty was outside the range a court could reasonably impose.
New or better evidence, a witness who can now attend, or expert material that was missing below can all shift a rehearing, and matters that might have been dismissed early in the Magistrates’ Court sometimes resolve far better on appeal. What rarely works is simply hoping a different judge will feel differently, so the honest question is always what has changed, or what can be done better, this time. Seeing where an appeal sits in the wider criminal process helps you judge whether it is worth running.
What happens to your sentence while you appeal?
If you were sent to prison, you do not necessarily have to serve it while you wait. Under section 265 of the Criminal Procedure Act, you can apply for bail pending the hearing of your appeal, and the Bail Act 1977 (Vic) applies to that application.
This matters enormously in practice, because Magistrates’ Court sentences are often short, and without bail an appeal could take longer to be heard than the sentence itself lasts, making the appeal meaningless. An application for bail can be made at the same time as the appeal, and our guide on applying for bail explains how those applications are built. Moving quickly here is essential, because every day counts when a short sentence is running.
How do you lodge an appeal to the County Court?
Through the Magistrates’ Court registry, in writing, and within the deadline. You start an appeal by completing a notice of appeal and lodging it at the Magistrates’ Court of Victoria registry within 28 days, which you can do yourself or through a lawyer. A copy must then be served on the informant, the police officer in charge of your case, usually within 7 days, and this can be done in person, by post, or electronically.
It sounds administrative, but getting the mechanics wrong, lodging late or failing to serve, can put your appeal at risk before it is even heard. This is one of those areas where a small procedural slip has outsized consequences, so care at the start pays off.
Once the appeal is lodged, the matter is listed in the County Court, and there is usually a period before the hearing in which the case is prepared, the evidence is organised, and any bail application is dealt with. Using that time well, rather than treating the lodgement as the end of the work, is often what separates a successful appeal from a wasted one.
Should you appeal? Weighing it up
An appeal is a right, but it is not always the right move, and honest advice is worth more than optimism. The rehearing gives you a genuine second chance, especially where the first hearing was rushed, where new evidence is available, or where the sentence was out of step with the offending.
Against that, you have to weigh the risk of a heavier sentence, the cost and time involved, and the strength of your grounds, which is where an experienced criminal appeals lawyer earns their place by telling you not just that you can appeal, but whether you should. It is also worth knowing that the County Court is usually the end of the road for these matters, because a further appeal to the Supreme Court is generally limited to a question of law rather than a fresh look at the facts, which is another reason to put your best case forward at the County Court rather than banking on a later challenge.
If you have been convicted or sentenced in the Magistrates’ Court and are thinking about an appeal, get advice on your appeal as soon as possible, because the 28-day clock is already running and the earlier you get advice, the more options you keep open.
