The matter related to an appeal out of time where the clients originally lawyer had not advised that he had the right to appeal. The decision was terrible and the client should have been so advised, the client should have also been advised that he had 28 days to appeal the decision. The client sought advice about how to now appeal out of time from the magistrates court to the county court, fortunately he engaged the right lawyers the second time around and the following result ensued;
Charges that were appealed
Dangerous Driving; Driving Without Authorised Interlock Device Fitted to Vehicle.
Facts relating to appealed charges
The client was in Yarragon, Victoria driving to get to a party. He was driving at 170km/hr in a 110km/hr zone. There was no one else on the road apart from a police officer. The client had one passenger in the car.
When the client was charged with the above offences he engaged a solicitor and appeared in the Frankston Magistrates’ Court. The client was sentenced to a 200 Hour Community Based Order (now Community Corrections Order), a four month suspended gaol sentence, and lost his driver’s licence for four years.
The client was relatively unfamiliar with the legal process. He later indicated that he had not been advised about his appeal rights. He thought he could appeal any time and so he attended our office 15 months later and instructed us to lodge an appeal.
Result of appeal
This was a difficult appeal, in that under the Criminal Procedure Act any appeal from the Magistrates’ Court must be lodged within 28 days of sentence. The client was attempting to appeal some 15 months after sentence had occurred.
We first had to seek leave to appeal Out of Time under section 263 of the Criminal Procedure Act. To be successful we had to convince the Court that there were exceptional circumstances explaining why the client did not file within time. We also had to satisfy the Court that the delay in filing the appeal would not unfairly prejudice the police case.
As far as the Criminal Procedure Act is concerned, when seeking leave to appeal Out of Time the original decision is irrelevant. The only thing that the Court can take into account is whether there were exceptional circumstances to explain why the appeal was not lodged in time following the original hearing in the Magistrates’ Court.
The client was required to give evidence at the hearing. The Judge accepted that the combination of the client’s lack of experience in the criminal justice system and the lack of advice provided by the previous solicitor, constituted ‘exceptional circumstances’.
His Honour granted leave, heard the appeal and then re-sentenced the client. The client received a fine of $1 000 and the licence cancellation was reduced from four years to two years. It was an excellent outcome.
