A criminal verdict is rarely the last word. Victoria has a layered appeals system that lets people who have been convicted — and in some cases the prosecution — ask a higher court to revisit either the conviction itself or the sentence imposed. The structure is technical, the thresholds vary by court, and the rules have shifted significantly in the last decade.
This is our plain-English guide to how appeals work in Victoria, from a simple Magistrates’ Court matter all the way through to the High Court of Australia. Nothing in this article is legal advice; anyone considering an appeal should speak to a lawyer or contact Victoria Legal Aid.
The two starting points: summary and indictable
Where an appeal goes depends on where the case began. Summary offences — the less serious matters that finish in the Magistrates’ Court — follow one path. Indictable offences finalised in the County Court or the Supreme Court follow another. The distinction matters because the appellate test is not the same on each track.
In broad terms, summary appeals get a fresh hearing. Indictable appeals get a review of the trial below. That single difference shapes everything else.
Appeals from the Magistrates’ Court to the County Court
Most appeals against Magistrates’ Court decisions go to the County Court, and they are heard de novo — Latin for “from new”. A County Court judge sits without a jury and rehears the matter from the start. The witnesses can be called again. The evidence is re-examined. The judge then decides afresh whether the offence is proved and, if so, what sentence should be imposed.
A few features of this regime are worth knowing. There is no leave threshold — an appeal of right exists, provided it is filed within the statutory window (generally 28 days). The appellant can challenge conviction, sentence, or both. And because the hearing is fresh, the County Court can impose a more severe sentence than the magistrate did, although it must give a warning before doing so. That risk — sometimes called the warning of a more severe sentence — is one reason appellants and their lawyers think carefully before pressing ahead.
The prosecution can also appeal a Magistrates’ Court sentence to the County Court if the Director of Public Prosecutions considers it manifestly inadequate, although that route is used sparingly.
Appeals from the County and Supreme Courts
Appeals from indictable matters — trials in the County Court or the Supreme Court — go to the Court of Appeal, which sits within the Supreme Court of Victoria. This is a different exercise altogether. The Court of Appeal does not rehear the case. It reviews what happened below to decide whether the conviction or the sentence should stand.
Three broad grounds drive most conviction appeals:
- Error of law — the trial judge made a legal mistake (a wrong direction to the jury, a wrong ruling on the admissibility of evidence, an incorrect statement of the elements of an offence).
- Miscarriage of justice — something about the trial process meant the verdict was not safely arrived at, even if no single legal error can be pinpointed. This is the broadest ground.
- Unreasonable verdict — the jury’s verdict was not one a reasonable jury could have reached on the evidence presented.
For sentence appeals, the test is generally whether the sentence is manifestly excessive (when the offender appeals) or manifestly inadequate (when the Director of Public Prosecutions appeals). Manifest excess is not the same as a sentence the appeal court would have imposed differently — it has to fall outside the range a properly instructed sentencing judge could reasonably have reached.
The leave-to-appeal threshold
Indictable appeals are not appeals of right. The appellant must obtain leave from the Court of Appeal, which means convincing the court that the proposed grounds are reasonably arguable. In practice, leave and the substantive appeal are often heard together, with leave granted from the bench where the grounds clearly meet the threshold.
The leave requirement is meant to filter out hopeless appeals while keeping a low enough bar that genuine grounds get a hearing. Whether it strikes the right balance is a recurring debate among practitioners and academics.
The second-appeal regime
One of the most significant changes to Victorian appeal law in recent years is the second-appeal regime. Historically, once the Court of Appeal had dismissed a conviction appeal, that was effectively the end of the road in Victoria — only the High Court remained, and only on a special-leave basis.
That changed in 2019, when the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) inserted provisions allowing a second or subsequent appeal where there is “fresh and compelling” evidence. The reform sat against the backdrop of the Cardinal George Pell case — in which the High Court ultimately overturned the Court of Appeal’s decision — and broader concern that Victorian wrongful-conviction cases had no domestic mechanism to reopen once standard appeals were exhausted. South Australia and Tasmania had similar reforms.
The second-appeal door is deliberately narrow. The fresh evidence must be both genuinely new (not reasonably available at trial) and compelling (highly probative, capable of changing the result). It is not a safety net for losing arguments — it is a remedy for fresh facts.
Going to the High Court
The final step is the High Court of Australia. The High Court does not hear criminal appeals as of right. Instead, an applicant must seek special leave to appeal, and the bar is high. Special leave is generally granted only where the case raises a question of law of public importance, where there is a difference between intermediate appellate courts that needs resolving, or where the interests of justice require it.
Most special-leave applications fail. Of the small number that succeed, the High Court’s decision becomes binding precedent on courts across the country — which is why High Court criminal appeals tend to attract close attention from practitioners well beyond Victoria.
What an appeal actually involves
For an appellant, the practical reality of an appeal is quieter than the trial it follows. There is rarely a jury, rarely live witnesses, and the hearing typically runs from a written submission supported by oral argument from counsel. A Court of Appeal hearing might last half a day. The decision often arrives weeks or months later, in writing.
Appeals are also expensive, which is why Victoria Legal Aid’s appeals work matters — without it, large numbers of arguable grounds would never reach a court. Self-represented appellants exist, but the appellate process is heavily document-driven and is genuinely difficult without a lawyer.
How long appeals take
Appellate timelines in Victoria are not quick. A Magistrates’ Court appeal heard de novo in the County Court might come on for hearing within a few months. A Court of Appeal matter from a County Court trial typically takes considerably longer — the preparation of trial transcripts, the filing of written submissions, the listing of an oral hearing and the delivery of a reserved judgment can together push the timeline well past 12 months in many cases. Appeals involving fresh evidence under the second-appeal regime can take longer still, because the fresh evidence itself usually has to be tested through a referee or a remitted hearing.
This is one of the practical realities of an appeal. People sometimes choose not to appeal because waiting another year for an outcome, with the original sentence either being served or hanging over them, is not the best outcome for their life even if the legal grounds are real.
Where to get help
If you or someone you know is considering an appeal, contact Victoria Legal Aid on 1300 792 387 or speak to a private criminal lawyer. Court Network volunteers can provide non-legal court support. For anyone in distress about a criminal proceeding or its aftermath, Lifeline is on 13 11 14 and Beyond Blue on 1300 22 4636.
