New South Wales: Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Appeal and Review) Act 2001 No 120 An Act to restate the law with respect to appeals and other forms of review in relation to criminal proceedings; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Crimes (Appeal and Review) Act 2001. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— acquittal includes— (a) an acquittal in appeal proceedings in respect of an offence, and (b) an acquittal at the direction of a court. appeal court means the court to which an appeal or application for leave to appeal may be made under Part 3, 4 or 5. appellant, in relation to proceedings on an application for leave to appeal, includes the applicant in those proceedings. defendant, in relation to proceedings from which an appeal or application for leave to appeal is made, means the person against whom those proceedings have been taken. environmental offence means an offence for which summary proceedings may be taken before the Land and Environment Court, whether or not summary proceedings for such an offence may also be taken before any other court, and includes any offence arising under the environment protection legislation within the meaning of the Protection of the Environment Administration Act 1991. exercise a function includes perform a duty. fresh evidence, in relation to appeal proceedings, means evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen. function includes a power, authority or duty. Local Court includes— (a) a Children's Court constituted under the Children's Court Act 1987, and (b), (c) (Repealed) (d) any court that is constituted by a Magistrate and that exercises criminal jurisdiction, and (e) any Magistrate or court that exercises any function or jurisdiction under Chapter 3 (Part 3 excepted), Chapter 4 (Part 5 excepted) or Chapter 5 of the Criminal Procedure Act 1986. original Local Court proceedings means the proceedings in the Local Court that involved the making or imposition of a conviction, sentence or order from which the proceedings under this Act arise. prosecutor, in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings. public authority means— (a) the Crown, or (b) an entity within the meaning of the Government Sector Finance Act 2018 (or an entity belonging to a class) prescribed by the regulations to be a public authority for the purposes of this Act, or (c) an officer or employee of such an authority acting in the course of his or her employment. sentence means— (a) any order made by the Local Court in respect of a person as a consequence of its having convicted the person of an offence, including— (i) any sentence of imprisonment (including any sentence of imprisonment the subject of an intensive correction order or home detention order), and (ii) any community service order, good behaviour bond or fine, and (iia) any community correction order or conditional release order, and (iii) any order suspending execution of a sentence of imprisonment under section 12 of the Crimes (Sentencing Procedure) Act 1999, and (iiia) any non-association order or place restriction order under section 17A of the Crimes (Sentencing Procedure) Act 1999, and (iv) any direction for compensation under section 94 (Directions for compensation for injury) or 97 (Directions for compensation for loss) of the Victims Rights and Support Act 2013, and (iva) any child protection registration order under section 3D of the Child Protection (Offenders Registration) Act 2000, and (v) any order or direction with respect to restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, or (b) any order made by the Local Court in respect of a person under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding the person guilty of an offence, or (ba) any order made by the Local Court revoking a good behaviour bond and any order made as a consequence of the revocation of the good behaviour bond, or (c) any order for restitution made by the Local Court in respect of a person under section 43 of the Criminal Procedure Act 1986, or (d) any order for costs made by a Magistrate against a person in connection with committal proceedings taken against the person, or (e) any order for costs made by the Local Court against a person in connection with summary proceedings taken against the person, or (f) (Repealed) workplace relations offence means an offence under— (a) the Industrial Relations Act 1996, or (b) the Work Health and Safety Act 2011. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In the case of an application or appeal in relation to a decision of the Children's Court under Part 3 of the Children (Criminal Proceedings) Act 1987— (a) a reference in this Act to a conviction includes a reference to a finding of guilt under that Act, and (b) a reference in this Act to a sentence includes a reference to an order made on the finding of guilt under that Act. (3) In this Act, a reference to varying a sentence includes— (a) a reference to varying the severity of the sentence, and (b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature, and (c) a reference to varying or revoking a condition of, or imposing a new condition on, an intensive correction order, community correction order or conditional release order. (3A) Without limiting subsection (3), a power conferred on an appeal court under this Act to vary a sentence includes the power to make an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 and, for that purpose, to set aside a conviction made by the original Local Court (without setting aside the finding of guilt on which the conviction is based) to enable the order to be made. (4) Notes included in the text of this Act do not form part of this Act. Part 2 Local Court review of Local Court decisions 4 Applications to Local Court (1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Local Court sitting at the place at which the original Local Court proceedings were held. (1A) An application may be made by the defendant or by the prosecutor. However, an application by the defendant may be made only if— (a) in the case of an application for an annulment of a conviction—the defendant was not in appearance before the Local Court when the conviction was made, or (b) in the case of an application for an annulment of a sentence—the defendant was not in appearance before the Local Court when the sentence was imposed. (1B) A defendant may not make an application for annulment of a conviction or sentence under this section if the defendant had lodged a notice in writing under section 182 of the Criminal Procedure Act 1986 in respect of the offence for which the defendant was convicted or the sentence was imposed. (2) An application under this section must be made— (a) within 2 years after the relevant conviction or sentence is made or imposed, or (b) if an application has been made to the Attorney General under section 5 within that 2-year period, within 2 years after the application under section 5 has been disposed of under this Part. (3) Except by leave of the Local Court, a person may not make more than one application under this section in relation to the same matter. (4) An application must be in writing, and must be lodged with a registrar of the Local Court. (5) (Repealed) 4A Annulment of conviction or sentence on motion by Local Court Without limiting section 4, the Local Court may, on its own motion in the interest of justice, decide to annul a conviction or sentence made or imposed by the Court if the defendant was not in appearance in proceedings before the Court when the conviction or sentence was made or imposed. 5 Applications to Attorney General (1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Attorney General by any person. (1A) An application under this section may be made at any time after the relevant conviction or sentence is made or imposed. (2) If satisfied that a question or doubt exists— (a) as to the defendant's guilt, or (b) as to the defendant's liability for a penalty, the Attorney General may refer the application to the Local Court sitting at the place at which the original Local Court proceedings were held. 6 Notice of applications (1) As soon as practicable after an application for annulment is received by the Local Court, the relevant registrar of the Local Court must notify the applicant and other interested parties of the date, time and place fixed for dealing with the application. (2) The Local Court may deal with an application for annulment, despite any omission or error in the notice or despite the notice having not been served on an interested party, if it is satisfied that the party— (a) is aware of the date, time and place fixed for dealing with the application and has not been prejudiced as a consequence of the notice having not been served, or (b) is avoiding service of the notice or cannot, after reasonable search and inquiry, be found. 7 Procedure for dealing with applications (1) The Local Court may deal with an application for annulment in the presence or absence of the parties and in open court or in private. (2) When dealing with an application for annulment, the Local Court may stay the execution of the sentence concerned subject to such terms and conditions as it thinks fit. (3) The rules of court made under the Local Court Act 2007 may make provision for or with respect to procedure and evidence for the purposes of the hearing of applications for annulment. 8 Circumstances in which applications to be granted (1) The Local Court must grant an application for annulment made by the prosecutor if it is satisfied that, having regard to the circumstances of the case, there is just cause for doing so. (2) The Local Court must grant an application for annulment made by the defendant if it is satisfied— (a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or (b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or (c) that, having regard to the circumstances of the case, it is in the interests of justice to do so. 9 Procedure after decision on annulment of conviction or sentence (1) The Local Court must notify each of the interested parties of its decision as to an application for annulment or of its decision under section 4A. (2) If its decision is to annul the relevant conviction or sentence, the Local Court— (a) must deal with the original matter afresh (either immediately or at a later date), and (b) unless it does so immediately, must notify each of the interested parties of the date, time and place fixed for dealing with the original matter. (3) The Local Court is to deal with the original matter as if no conviction or sentence had been previously made or imposed. (4) The original matter need not be dealt with by the Magistrate who ordered the annulment of the conviction or sentence, but may be dealt with by any Magistrate, including the Magistrate by whom the matter was dealt with in the original Local Court proceedings. (5) In this section, original matter, in relation to a conviction or sentence that has been annulled, means the matter the subject of the proceedings from which the conviction or sentence arose. 10 Effect of annulment of conviction or sentence (1) On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed. (2) The annulment of a conviction for an offence that has been heard together with another offence for which a conviction has been made does not prejudice the conviction for the other offence. (3) If a fine is annulled, any amount paid towards the fine is repayable to the person by whom it was paid. (4) The Consolidated Fund is appropriated to the extent necessary to give effect to subsection (3). 10A Part applies to findings of guilt (1) An application for annulment under this Part , or a decision of the Local Court under section 4A, may be made in relation to a finding of guilt made by the Local Court, whether or not the Court proceeds to conviction, and this Part applies in respect of any such application or decision accordingly. (2) For that purpose— (a) a reference in this Part to a conviction includes a reference to a finding of guilt, and (b) a reference in this Part to a sentence includes any order made under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding a person guilty of an offence. Part 3 Appeals from Local Court to District Court Division 1 Appeals by defendants Subdivision 1 Making of appeals 11 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both). (1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person's absence or following the person's plea of guilty. (1B) Any person whose application under section 4 for annulment of a sentence has been refused by the Local Court may appeal to the District Court against the sentence. (2) An appeal must be made— (a) within 28 days after sentence is imposed, or (b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part, but (in the case of an appeal against a conviction) may not be made before sentence is imposed. 11A Appeals as of right against Local Court's refusal of application for annulment of conviction (1) Any defendant whose application under section 4 for annulment of a conviction has been refused by the Local Court may appeal to the District Court against the refusal. (2) An appeal under this section must be made within 28 days after the Local Court notifies the defendant of its refusal of the application. (3) Not more than one appeal may be made under this section in respect of any particular conviction. 12 Appeals requiring leave (1) Any person who has been convicted by the Local Court in the person's absence or following the person's plea of guilty may appeal to the District Court against the conviction, but only by leave of the District Court. (2) An application for leave to appeal may not be made in relation to a conviction in respect of which the defendant— (a) is entitled to make an application under section 4 but has not done so, or (b) has made an application under section 4 but the application has not been disposed of under Part 2. (3) An application for leave to appeal must be made— (a) within 28 days after (but not before) the sentence imposed after the relevant conviction is made, or (b) if an application for annulment of the conviction has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part. 13 Late applications for leave to appeal (1) An appeal to the District Court may be made— (a) by any person by whom an appeal could be made under section 11, but for section 11 (2), and (a1) by any defendant by whom an appeal could be made under section 11A, but for section 11A (2), and (b) by any person by whom an application for leave to appeal could be made under section 12, but for section 12 (3), but only by leave of the District Court. (2) An application for leave to appeal must be made within 3 months after the relevant conviction or sentence is made or imposed, or the relevant application under section 4 is refused, as the case may require. 14 Lodgment of appeals and applications for leave to appeal (1) An appeal under section 11 or 11A is to be made by lodging a written notice of appeal with— (a) a registrar of the Local Court, or (b) the person in charge of the place where the appellant is in custody. (2) A notice of appeal must state the general grounds of appeal. (3) An application for leave to appeal under section 12 or 13 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with— (a) a registrar of the Local Court, or (b) the person in charge of the place where the appellant is in custody. (4) An application for leave to appeal must state the general grounds of the application and, in the case of an application under section 13, must state the reasons why an appeal or application for leave to appeal was not made within the time allowed by section 11, 11A or 12, as the case may be. (5) On the granting of leave to appeal, an appeal is taken to have been made in accordance with the written notice of appeal referred to in subsection (3). 15 Documents to be forwarded to prosecutor and relevant court registrars (1) The person with whom a notice of appeal or application for leave to appeal is lodged must immediately forward a copy of it to— (a) the prosecutor in the original Local Court proceedings, and (b) the relevant registrar of the Local Court, if the person is not that registrar, and (c) the Director of Public Prosecutions. (2) As soon as practicable after receiving a notice of appeal or application for leave to appeal, the relevant registrar of the Local Court must send the relevant papers (including a copy of any relevant order or conviction made by the Local Court) to a registrar of the District Court. Subdivision 2 Determination of appeals 16 Determination of applications for leave to appeal (1) The District Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. (2) Leave to appeal must not be granted in relation to an application under section 13 unless the District Court is satisfied that it is in the interests of justice that leave be granted. (3) If the District Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just. (4) If the District Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings. 16A Determination of appeals against Local Court's refusal of application for annulment of conviction (1) The District Court may determine an application under section 11A by dismissing the application or by granting it. (2) Pending the determination of the application, the District Court may stay the execution of any sentence relating to the conviction concerned subject to such terms and conditions as it thinks fit. (3) If the District Court grants the application, the District Court must remit the matter to the Local Court. (4) The Local Court is to deal under section 9 with any matter remitted to it under this section as if the application under section 4 in respect of the matter had been granted by the Local Court. 17 Appeals against sentence to be by way of rehearing of evidence An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings. 18 Appeals against conviction to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19. (2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. (3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence. 19 Circumstances in which evidence to be given in person (1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied— (a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or (b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence. (2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party's intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct. (3) If an application for such a direction is refused, the District Court must give reasons for the refusal. (4) A direction may be withdrawn only on the application, or with the consent, of the appellant. (5) The regulations may make provision for or with respect to the determination of special or substantial reasons for the purposes of subsection (1). (6) Without limiting subsection (5), in determining whether special or substantial reasons exist, the District Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings. 20 Determination of appeals (1) The District Court may determine an appeal against conviction— (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) in the case of an appeal made with leave under section 12 (1)—by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court. (2) The District Court may determine an appeal against sentence— (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. 21 Notice of dismissal of appeal or application for leave to appeal (1) If an appeal or application for leave to appeal is dismissed because of the appellant's failure to appear, the registrar of the District Court for the proclaimed place (within the meaning of the District Court Act 1973) at which the appeal or application is dismissed must cause notice of that fact to be served on the appellant. (2) Such a notice must state the following— (a) that the District Court has dismissed the appeal or application, (b) that the appellant is entitled to apply for the setting aside of the order by which the order dismissing the appeal or application was made, (c) that any such application must be made within 12 months after the date on which the order dismissing the appeal or application was made. 22 Revocation of orders dismissing appeals and applications for leave to appeal (1) An application may be made to the District Court for the setting aside of an order under section 21 that has dismissed an appeal or application for leave to appeal because of the appellant's failure to appear (a dismissal order). (2) An application under this section must be made within 12 months after the date on which the dismissal order is made. (3) After hearing such an application, the District Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied— (a) that the appellant has shown sufficient cause for the failure to appear, and (b) that it is in the interests of justice that the appeal or application be heard. (4) Section 60 applies to any sentence in respect of which a dismissal order is set aside. (5) No action lies against any person for anything done or omitted to be done by the person in good faith, and without notice of the setting aside of a dismissal order, for the purpose of enforcing the conviction or sentence the subject of the appeal to which the order relates. Division 2 Appeals by prosecutors Subdivision 1 Making of appeals 23 Appeals as of right (1) The Director of Public Prosecutions may appeal to the District Court against a sentence imposed on a person by the Local Court in any of the following proceedings— (a) proceedings for any indictable offence that has been dealt with summarily, (b) proceedings for any prescribed summary offence (within the meaning of the Director of Public Prosecutions Act 1986), (c) proceedings for any summary offence that has been prosecuted by or on behalf of the Director of Public Prosecutions. (2) The prosecutor may appeal to the District Court against— (a) any order for costs made by a Magistrate against the prosecutor in respect of committal proceedings taken by the prosecutor, or (b) any order for costs made by the Local Court against the prosecutor in respect of summary proceedings taken by the prosecutor. (3) An appeal against a sentence or an order for costs must be made within 28 days after the relevant sentence is imposed or the order for costs is made. (4) Despite subsection (3), an appeal may be lodged more than 28 days after the relevant sentence is imposed if— (a) the sentence has been reduced on the defendant's undertaking to assist law enforcement authorities (as referred to in section 23 of the Crimes (Sentencing Procedure) Act 1999), and (b) the defendant has failed, whether wholly or partly, to fulfil the undertaking. 24 Lodgment of appeals (1) An appeal under section 23 is to be made by lodging a written notice of appeal with a registrar of the Local Court. (2) A notice of appeal must state the general grounds of appeal. 25 Documents to be forwarded to defendant and relevant court registrars (1) The person with whom a notice of appeal is lodged must immediately forward a copy of it to— (a) the defendant in the original Local Court proceedings, and (b) the relevant registrar of the Local Court, if the person is not that registrar. (2) As soon as practicable after receiving a notice of appeal, the relevant registrar of the Local Court must send the relevant papers (including a copy of any relevant order or conviction made by the Local Court) to a registrar of the District Court. Subdivision 2 Determination of appeals 26 Appeals against sentence to be by way of rehearing of evidence (1) An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings, but only by leave of the District Court. (2) Leave to give fresh evidence may be granted to the Director of Public Prosecutions only in exceptional circumstances. 27 Determination of appeals (1) The District Court may determine an appeal against sentence— (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. (2) The District Court may determine an appeal against an order referred to in section 23 (2)— (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal. Division 3 Miscellaneous 28 Miscellaneous powers (1) Without limiting its other powers, the District Court may do any one or more of the following— (a) it may specify the proclaimed place (within the meaning of the District Court Act 1973) at which the hearing of an appeal or application for leave to appeal is to be heard or continued, (b) it may specify the sitting at which the hearing of an appeal or application for leave to appeal is to be heard or continued, (c) it may adjourn the hearing of an appeal or application for leave to appeal. (2) In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings. (3) Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just. 29 Limits on appeals (1) No appeal may be made to the District Court under this Part against a decision of the Local Court— (a) in relation to an environmental offence against which an appeal may be made under Part 4, or (b) that is or has previously been the subject of an appeal or application for leave to appeal to the District Court under this Part, or (c) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under Part 5. (2) Subsection (1) (c) does not prevent a person who has made an appeal or application for leave to appeal to the Supreme Court under Part 5 from making an appeal or application for leave to appeal to the District Court under this Part if— (a) the Supreme Court has remitted the matter on appeal to the Local Court for redetermination, and the Local Court has redetermined the matter, or (b) the Supreme Court has refused leave to appeal in relation to an appeal made on a ground of mixed law and fact. (3) No application to set aside or vary any conviction or sentence of the Local Court that could be the subject of an appeal under this Part may be made to the District Court (whether in its civil or criminal jurisdiction) except by way of an appeal under this Part. 30 Rules of court Rules of court may be made under the District Court Act 1973 with respect to the jurisdiction conferred by this Part on the District Court. Part 4 Appeals from Local Court to Land and Environment Court Division 1 Appeals by defendants Subdivision 1 Making of appeals 31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence. (1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person's absence or following the person's plea of guilty. (2) An appeal must be made— (a) within 28 days after sentence is imposed, or (b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part, but (in the case of an appeal against conviction) may not be made before sentence is imposed. 32 Appeals requiring leave (1) Any person who has been convicted by the Local Court, in the person's absence or following the person's plea of guilty, with respect to an environmental offence may appeal to the Land and Environment Court against the conviction, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court. (2) Any person against whom— (a) an order has been made by a Magistrate in relation to the person in any committal proceedings with respect to an environmental offence, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings with respect to an environmental offence, may appeal to the Land and Environment Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court. (3) An application for leave to appeal under subsection (1) may not be made in relation to a conviction in respect of which the defendant— (a) is entitled to make an application under section 4 but has not done so, or (b) has made an application under section 4 but the application has not been disposed of under Part 2. (4) An application for leave to appeal must be made— (a) in the case of a conviction referred to in subsection (1)— (i) within 28 days after sentence is imposed, or (ii) if an application for annulment of the conviction has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part, but may not be made before sentence is imposed, or (b) in the case of an order referred to in subsection (2), within 28 days after the relevant order is made. 33 Late applications for leave to appeal (1) An appeal to the Land and Environment Court may be made— (a) by any person by whom an appeal could be made under section 31, but for section 31 (2), and (b) by any person by whom an application for leave to appeal could be made under section 32, but for section 32 (4), but only by leave of the Land and Environment Court. (2) An application for leave to appeal must be made within 3 months after the relevant conviction, sentence or order is made or imposed. 34 Lodgment of appeals and applications for leave to appeal (1) An appeal under section 31 is to be made by lodging a written notice of appeal with— (a) the Registrar of the Land and Environment Court, or (b) the person in charge of the place where the appellant is in custody. (2) A notice of appeal must state the general grounds of appeal. (3) An application for leave to appeal under section 32 or 33 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with— (a) the Registrar of the Land and Environment Court, or (b) the person in charge of the place where the appellant is in custody. (4) An application for leave to appeal must state the general grounds of the application and, in the case of an application under section 33, must state the reasons why an appeal or an application for leave to appeal was not made within the time allowed by section 31 or 32, as the case may be. (5) On the granting of leave to appeal, an appeal is taken to have been made in accordance with the written notice of appeal referred to in subsection (3). 35 Documents to be forwarded to prosecutor and relevant court registrars (1) The person with whom a notice of appeal or application for leave to appeal is lodged must immediately forward a copy of it to— (a) the prosecutor in the original Local Court proceedings, and (b) the relevant registrar of the Local Court, if the person is not that registrar, and (c) the Director of Public Prosecutions. (2) As soon as practicable after receiving a notice of appeal or application for leave to appeal, the relevant registrar of the Local Court must send the relevant papers (including a copy of any relevant order or conviction made by the Local Court) to the registrar of the Land and Environment Court. Subdivision 2 Determination of appeals 36 Determination of applications for leave to appeal (1) The Land and Environment Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. (2) Leave to appeal must not be granted in relation to an application under section 33 unless the Land and Environment Court is satisfied that it is in the interests of justice that leave be granted. (3) If the Land and Environment Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just. (4) If the Land and Environment Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings. 37 Appeals to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38. (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. (3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence. 38 Circumstances in which evidence to be given in person (1) The Land and Environment Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied that there are substantial reasons why, in the interests of justice, the person should attend and give evidence. (2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party's intention to make such an application has been served on each other party to the proceedings within such period as the Land and Environment Court may direct. (3) If an application for such a direction is refused, the Land and Environment Court must give reasons for the refusal. (4) A direction may be withdrawn only on the application, or with the consent, of the appellant. (5) The regulations may make provision for or with respect to the determination of substantial reasons under subsection (1). (6) Without limiting subsection (5), in determining whether substantial reasons exist, the Land and Environment Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings. 39 Determination of appeals (1) The Land and Environment Court may determine an appeal against conviction— (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) in the case of an appeal made with leave under section 32 (1)—by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court. (2) The Land and Environment Court may determine an appeal against sentence— (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. (3) The Land and Environment Court may determine an appeal against an order referred to in section 32 (2) (a) or (b)— (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal. 40 Notice of dismissal of appeal or application for leave to appeal (1) If an appeal or application for leave to appeal is dismissed because of the appellant's failure to appear, the registrar of the Land and Environment Court must cause notice of that fact to be served on the appellant. (2) Such a notice must state the following— (a) that the Land and Environment Court has dismissed the appeal or application, (b) that the appellant is entitled to apply for the setting aside of the order by which the order dismissing the appeal or application was made, (c) that such an application must be made within 12 months after the date on which the order dismissing the appeal or application was made. 41 Revocation of orders dismissing appeals and applications for leave to appeal (1) An application may be made to the Land and Environment Court for the setting aside of an order under section 40 that has dismissed an appeal or application for leave to appeal because of the appellant's failure to appear (a dismissal order). (2) An application under this section must be made within 12 months after the date on which the dismissal order is made. (3) After hearing such an application, the Land and Environment Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied— (a) that the appellant has shown sufficient cause for the failure to appear, and (b) that it is in the interests of justice that the appeal or application be heard. (4) Section 60 applies to any sentence in respect of which a dismissal order is set aside. (5) No action lies against any person for anything done or omitted to be done by the person in good faith, and without notice of the setting aside of a dismissal order, for the purpose of enforcing the conviction or sentence the subject of the appeal to which the order relates. Division 2 Appeals by prosecutors Subdivision 1 Making of appeals 42 Appeals as of right (1) The Director of Public Prosecutions may appeal to the Land and Environment Court against a sentence imposed on a person by the Local Court in relation to an environmental offence for which proceedings have been prosecuted by or on behalf of a public authority (other than the Environment Protection Authority). (2) The Environment Protection Authority may appeal to the Land and Environment Court against a sentence imposed on a person by the Local Court in relation to an environmental offence for which proceedings have been prosecuted by or on behalf of the Environment Protection Authority. (2A) The prosecutor (other than the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against a sentence imposed by the Local Court in any summary proceedings in relation to an environmental offence, but only on a ground that involves a question of law alone. (2B) The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against— (a) an order made by the Local Court that stays any summary proceedings for the prosecution of an environmental offence, or (b) an order made by the Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence, or (c) an order for costs made by the Local Court against the prosecutor in any summary proceedings with respect to an environmental offence, but only on a ground that involves a question of law alone. (3) An appeal must be made within 28 days after the relevant sentence is imposed. (4) Despite subsection (3), an appeal may be lodged more than 28 days after the relevant sentence is imposed if— (a) the sentence has been reduced on the defendant's undertaking to assist law enforcement authorities (as referred to in section 23 of the Crimes (Sentencing Procedure) Act 1999), and (b) the defendant has failed, whether wholly or partly, to fulfil the undertaking. 43 Appeals requiring leave (1) The Director of Public Prosecutions may appeal to the Land and Environment Court against— (a) an order that has been made by a Magistrate in relation to a person in any committal proceedings with respect to an environmental offence, or (b) an interlocutory order that has been made by the Local Court in relation to a person in summary proceedings with respect to an environmental offence, being an offence for which proceedings have been prosecuted by or on behalf of a public authority (other than the Environment Protection Authority), but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court. (1A) The Environment Protection Authority may appeal to the Land and Environment Court against— (a) an order that has been made by a Magistrate in relation to a person in any committal proceedings with respect to an environmental offence, or (b) an interlocutory order that has been made by the Local Court in relation to a person in summary proceedings with respect to an environmental offence, being an offence for which proceedings have been prosecuted by or on behalf of the Environment Protection Authority, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court. (2) An application for leave to appeal must be made within 28 days after the relevant order is made. 44 Lodgment of appeals and applications for leave to appeal (1) An appeal under section 42 is to be made by lodging a written notice of appeal with the registrar of the Land and Environment Court. (2) A notice of appeal must state the general grounds of appeal. (3) An application for leave to appeal under section 43 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with the registrar of the Land and Environment Court. (4) An application for leave to appeal must state the general grounds of the application. 45 Documents to be forwarded to defendant and relevant court registrars (1) The person with whom a notice of appeal or application for leave to appeal is lodged must immediately forward a copy of it to— (a) the defendant in the original Local Court proceedings, and (b) the relevant registrar of the Local Court, if the person is not that registrar. (2) As soon as practicable after receiving a notice of appeal or application for leave to appeal, the relevant registrar of the Local Court must send the relevant papers (including a copy of any relevant order or conviction made by the Local Court) to the registrar of the Land and Environment Court. Subdivision 2 Determination of appeals 46 Determination of applications for leave to appeal (1) The Land and Environment Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. (2) If the Land and Environment Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the Director of Public Prosecutions as it thinks just. (3) If the Land and Environment Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings. 47 Appeals against sentence to be by way of rehearing of evidence (1) An appeal is to be dealt with by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings, but only by leave of the Land and Environment Court. (2) Leave to give fresh evidence may be granted to the Director of Public Prosecutions or Environment Protection Authority only in exceptional circumstances. 48 Determination of appeals (1) The Land and Environment Court may determine an appeal against sentence— (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. (2) The Land and Environment Court may determine an appeal against an order referred to in section 43 (1) (a) or (b) or (1A) (a) or (b)— (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal. (3) The Land and Environment Court may determine an appeal against an order referred to in section 42 (2B)— (a) by setting aside the order and making such other order as it thinks just, or (b) by setting aside the order and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court, or (c) by dismissing the appeal. Division 3 Miscellaneous 49 Miscellaneous powers (1) Without limiting its other powers, the Land and Environment Court may do any one or more of the following— (a) it may specify the sitting at which the hearing of an appeal or application for leave to appeal is to be heard or continued, (b) it may adjourn the hearing of an appeal or application for leave to appeal. (2) In determining an appeal, the Land and Environment Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings. (3) In determining an appeal against an order referred to in section 43 (1) (a) or (b) or (1A) (a) or (b), the Land and Environment Court has the same jurisdiction as the Supreme Court with respect to such an appeal. (4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just. 50 Limits on appeals (1) No appeal may be made to the Land and Environment Court under this Part against a decision of the Local Court— (a) that is or has previously been the subject of an appeal or application for leave to appeal to the Land and Environment Court under this Part, or (b) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under Part 5. (2) Subsection (1) (b) does not prevent a person who has made an appeal or application for leave to appeal to the Supreme Court under Part 5 from making an appeal or application for leave to appeal to the Land and Environment Court under this Part if— (a) the Supreme Court has remitted the matter on appeal to the Local Court for redetermination, and the Local Court has redetermined the matter, or (b) the Supreme Court has refused leave to appeal in relation to— (i) an appeal made on a ground of mixed law and fact, or (ii) an appeal with respect to an environmental offence. (3) No application to set aside or vary any conviction or sentence of the Local Court that could be the subject of an appeal under this Part may be made to the Land and Environment Court (whether in its civil or criminal jurisdiction) except by way of an appeal under this Part. 51 Rules of court Rules of court may be made under the Land and Environment Court Act 1979 with respect to the jurisdiction conferred by this Part on the Land and Environment Court. Part 5 Appeals from Local Court to Supreme Court Division 1 Appeals by defendants Subdivision 1 Making of appeals 52 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court. 53 Appeals requiring leave (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves— (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. (2) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (3) Any person against whom— (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court. Subdivision 2 Determination of appeals 54 Determination of applications for leave to appeal (1) The Supreme Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. (2) Leave to appeal must not be granted in relation to an application with respect to an environmental offence unless the Supreme Court is satisfied that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application. (3) If the Supreme Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just. (4) If the Supreme Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings. 55 Determination of appeals (1) The Supreme Court may determine an appeal against conviction— (a) by setting aside the conviction, or (b) by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions, or (c) by dismissing the appeal. (2) The Supreme Court may determine an appeal against sentence— (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. (3) The Supreme Court may determine an appeal against an order referred to in section 53 (3) (a) or (b)— (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal. Division 2 Appeals by prosecutors Subdivision 1 Making of appeals 56 Appeals as of right (1) The prosecutor may appeal to the Supreme Court against— (a) a sentence imposed by the Local Court in any summary proceedings, or (b) an order made by the Local Court that stays any summary proceedings for the prosecution of an offence, or (c) an order made by the Local Court dismissing a matter the subject of any summary proceedings, or (d) an order for costs made by a Magistrate against the prosecutor in any committal proceedings, or (e) an order for costs made by the Local Court against the prosecutor in any summary proceedings, other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court. 57 Appeals requiring leave (1) The prosecutor may appeal to the Supreme Court against— (a) a sentence imposed by the Local Court with respect to an environmental offence, or (b) an order that has been made by a Magistrate in relation to a person in any committal proceedings, or (c) an interlocutory order that has been made by the Local Court in relation to a person in summary proceedings, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (2) An application for leave to appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court. Subdivision 2 Determination of appeals 58 Determination of applications for leave to appeal (1) The Supreme Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. (2) Leave to appeal must not be granted in relation to an application with respect to an environmental offence unless the Supreme Court is satisfied that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application. (3) If the Supreme Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the prosecutor as it thinks just. (4) If the Supreme Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings. 59 Determination of appeals (1) The Supreme Court may determine an appeal against sentence— (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. (2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c), (d) or (e) or 57 (1) (b) or (c)— (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal. Division 3 Miscellaneous 60 Limits on appeals A person may not appeal to the Supreme Court under this Part against a decision of the Local Court— (a) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under this Part, or (b) that is or has previously been the subject of an appeal or application for leave to appeal to the Court of Criminal Appeal under the Criminal Appeal Act 1912. 61 Rules of court Rules of court may be made under the Supreme Court Act 1970 with respect to the jurisdiction conferred by this Part on the Supreme Court. Part 6 Provisions common to all appeals 62 Effect of defect in notice of appeal or application for leave to appeal (1) A notice of appeal or application for leave to appeal is not invalid merely because of a defect, whether of substance or form, in the notice or application. (2) An appeal court hearing an appeal or application for leave to appeal may amend any such notice or application if it is satisfied that the notice or application is capable of amendment and ought to be amended. (3) Such an amendment may be made subject to such conditions as to adjournment as the appeal court thinks just. (4) An appeal court may dispose of an appeal or application for leave to appeal, despite the relevant notice or application having not been served on an interested party, if it is satisfied that the party— (a) is aware of the date, time and place fixed for dealing with the appeal or application and has not been prejudiced as a consequence of the notice or application having not been served, or (b) is avoiding service of the notice or application, or (c) cannot, after reasonable search and inquiry, be found. 63 Stay of execution of sentence pending determination of appeal (1) This section applies to— (a) any sentence, and (b) any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction, in respect of which an appeal or application for leave to appeal is made under this Act. (2) The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed— (a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or (b) in the case of an appellant whose appeal is the subject of an application for leave, when leave to appeal is granted, or (c) in the case of an appellant who is in custody when the appeal is made or leave to appeal is granted, when the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act. (2A) Subsection (2) does not operate to stay a suspension or disqualification of a driver licence that arose as the consequence of a conviction if, immediately before the proceedings giving rise to the conviction, a suspension was in force under Division 4 of Part 7.4 of the Road Transport Act 2013 (or a former corresponding provision within the meaning of that Act) for the offence to which the conviction relates. (2B) However, an appeal court may order that a suspension or disqualification referred to in subsection (2A) be stayed if the court considers a stay to be appropriate in the circumstances. (2C) Subject to subsection (2A), subsection (2) operates to stay the operation of a disqualification of a driver licence that arises under an Act as a consequence of a conviction, whether the relevant appeal is against the conviction or the sentence imposed as a consequence of the conviction. (3) Subject to any order of the appeal court, a stay of execution continues in force until the appeal is finally determined. (4) Such an order is to be made only if the appeal court is satisfied, in proceedings on an application by the prosecutor, that the appellant has unduly delayed the appeal proceedings. (5) In this section, a reference to an appellant who is in custody includes a reference to a person who is the subject of an intensive correction order or home detention order within the meaning of the Crimes (Administration of Sentences) Act 1999. 64 Extension of appeal proceedings to other convictions and sentences If an appeal or application for leave to appeal has been duly made in respect of one conviction or sentence (the primary conviction or sentence), an appeal court may hear and determine an appeal or application for leave to appeal in respect of any other conviction or sentence made or imposed on the same day, and in respect of the same person, as the primary conviction or sentence, and may do so even though an appeal or application for leave to appeal has not been duly made in respect of the other conviction or sentence. 65 Appeal not to succeed on narrow technical grounds (1) A conviction, order or sentence is not to be set aside on an appeal merely because of— (a) an omission or mistake in the form of the conviction or order, or (b) an error in law in the order or sentence, if it appears to the appeal court that there were sufficient grounds before the Local Court to have authorised a conviction, order or sentence free from the omission, mistake or error. (2) In such a case, the appeal court— (a) may amend the conviction, order or sentence and determine the appeal as if the omission, mistake or error did not exist, or (b) may remit the matter to the Local Court to make the conviction or order, or impose the senten