Driving on Appeal

Often clients will seek our advice on driving matters where they have been represented by other Melbourne criminal lawyers, or represented themselves, and received an excessively harsh sentence. If the sentence was given in the Magistrates’ Court, then the process to appeal is relatively straight forward if the 28 day appeal period has not elapsed. It is simply a matter of attending the Magistrates’ Court and filing a Notice of Appeal against sentence with the Registrar.

Generally when an appeal is lodged, the orders made in the Magistrates’ Court are stayed. This means that if the Magistrate sentenced the appellant (person lodging the appeal) to a 12 month good behaviour bond, that order is no longer in effect pending the outcome of the appeal. If the appeal is dismissed by the higher Court or abandoned by the appellant, then the original order of the Magistrate comes in to effect once again.

Orders made on licences however are not automatically stayed in the same manner by the lodging of an appeal notice, courtesy of section 29(2) of the Road Safety Act 1986. The section sets out that the Court making the order “may, in its discretion” stay the order on the appellant’s licence. This requires the appellant going back before a Magistrate (ideally the same one who gave the sentence) and seeking that the order against their licence be stayed so that they can continue driving until the matter is decided on appeal. If the Notice of Appeal is filed immediately, then the Court co-ordinators can usually send the matter back into Court on the same day. If the Notice is lodged some time after the Court date, then the matter must be listed as a separate application on a date in the future to be provided by the Court co-ordinator.

So, if you are appealing a sentence that has impacted upon your licence, always remember to seek a stay of that order from the Court if you wish to continue driving before the appeal is heard.