Last updated 29 August 2016
Either the defendant or the complainant may appeal to the District Court against any final orders made by a magistrate at a summary hearing. However, in respect of indictable offences determined summarily, a complainant may only appeal against the magistrate’s sentence or costs order and not following an acquittal (s 222 Justices Act 1886 (Qld) (Justices Act)).
An appeal to the District Court can be made against orders of conviction or sentence on many grounds. Grounds for appeal against conviction include an error of law, absence of jurisdiction, and in respect of indictable offences, that the magistrate erred in deciding the conviction or sentence summarily (s 114 District Court of Queensland Act 1967 (Qld) (DCQ Act), s 552J Criminal Code Act 1899 (Qld) (Criminal Code)).
An appeal will generally proceed by rehearing the original evidence given in the proceedings before the Magistrates Court. However, in special circumstances the District Court may grant leave for a party to adduce fresh, additional or substituted evidence on the appeal (s 223 Justices Act). Because an appellate court does not have the benefit of seeing witnesses give their evidence, there is a historical reluctance by appellate courts to overrule discretionary decisions that may be based upon the magistrate’s assessment of the credibility of witnesses. An error on the part of the magistrate generally needs to be shown (House v The King (1936) 55 CLR 499).
An appeal against sentence must show that the original sentence imposed was excessive or inadequate in all the circumstances.
An appeal must be started within one month from the making of the order by filing a Notice of Appeal with the District Court registry. Once an appeal is filed, either the Magistrates Court or the District Court has jurisdiction to grant bail pending the appeal upon application. Bail pending appeal is generally only granted in exceptional circumstances. Grounds for release on appeal bail (in addition to addressing the usual bail risks) would include where the sentence is relatively short, and the whole or a substantial part of it would be served before the appeal could be heard. The decision of the District Court is not final with a further right of appeal to the Court of Appeal (s 118 DCQ Act).
Where the Attorney-General appeals against a sentence for an indictable offence dealt with summarily, the appeal is heard in the Court of Appeal. If the defendant has also appealed to the District Court, both appeals are heard before the Court of Appeal (s 669A Criminal Code).