Is the End of De Novo appeals in the County Court of Victoria bad?

The abolition of de novo appeals in the County Court of Victoria means that when an appeal is made to the County Court, the judge will not conduct a completely new hearing of the case.

Etymology of De Novo Appeals

The etymology of “De Novo” derives from its use in Latin as the adverb dē novō, which means “from the new”. The etymology of appeal derives use of appelere in Latin which means “to address”. When applied to a De Novo appeal court hearing, “from the new” means that it would be heard again as though the original court hearing had never happened.

Conduct of a De Novo Appeals

De novo appeals operate in a way in which a higher court reviews a case that has already been decided by a lower court as if it is a new case. In this way the higher court reviews the lower court’s decision without giving it any deference or weight.

Traditionally a De Novo appeal will involve the County Court rehearing all of the evidence, arguments, and legal issues presented in the Magistrates’ Court decision and make its own independent decision without referring to the Magistrates’ Court decision at all.

De Novo appeals can occur at various stages of the legal process, such as after a trial or plea hearing. They were often used to challenge the outcomes of contested hearings at the Magistrates’ Court. They allowed for parties to have their case reviewed by the County Court with a fresh perspective that may allow a different outcome. However, Appeals De Novo can also be time-consuming and expensive.

Conduct of appeals that aren’t De Novo

In this case the judge will be required to consider only the evidence and legal arguments that were presented in the original trial. This means that the appeal is not a retrial of the case, but rather a review of the original decision based on the evidence presented during the trial. The change was made to improve efficiency and reduce delays in the court system, and means that less time has to be spent arranging for witnesses to give evidence.

The balance between efficiency and justice in the legal system is an important issue here, and one can ask the question as to whether this drive towards efficiency has unintended consequences on the justice system.

Of course, it is necessary for the legal system to operate efficiently to that justice can operate fairly. But it is also equally important for the legal system allows all parties to have a fair and impartial hearing in a way that ensures the outcome is just and equitable.

Efficiency and justice are often seen as conflicting goals for the County Court of Victoria, and the Magistrates’ Court of Victoria, as the pursuit of efficiency may lead to pressures to resolve cases quickly and efficiently, which can occasionally force resolutions that may not fully take into account the rights or interests of all parties.

Best Results from County Court Appeals

Regardless of the system that is in place, it is possible to work within the rules to achieve positive outcomes. If a De Novo appeal isn’t possible, one should look towards identifying how the case was lost in the first place, and to work out if there were any problems with the judicial reasoning used in the lower court. it may be the case that there was evidence admitted that should not have been adduced. Or there may have been an error with a question of law.

In cases such as these, there is no need for a De Novo appeal in order to have a chance at a successful appeal. However, in cases where issues are to be raised that have not been ventilated in the lower court, the abolition of the De Nove Appeal system will be detrimental to one’s chances of success.

When will the De Novo County Court Appeals be abolished?

Originally, the legislative amendments were to begin their operation no later that 3 July 2021 as provided in the Justice Legislation Amendment (Criminal Appeals) Act 2019 s 2(3) provided as per below:

If a provision of Division 1 or 2 of Part 2 or
Division 1 of Part 3 does not come into operation
before 3 July 2021, it comes into operation on that
day.”

But the later legislation delayed the implementation as per s124 of Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 which held these amendments were to commence no later than 1 January 2023:

In section 2(3) of the Justice Legislation
Amendment (Criminal Appeals) Act 2019, for
“3 July 2021” substitute “1 January 2023”.

In a legislative style unique to the Victorian government, two amendments were not enough. A further delay in implementation was set in stone by s 9 of the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 s 9 so that the implementation occurs by 5 July 2025. A problem with the delayed amendment is that s39 of the Justice Legislation Amendment (Criminal Appeals) Act 2019  was to be repealed on repealed on 3 July 2022. But that’s ok, because they have substituted the date of the repeal to 5 July 2026, allowing the implementing legislation to live long enough to cope with yet another small delay in implementation should such an unfortunate event occur.

(1) In section 2(3) of the Justice Legislation
Amendment (Criminal Appeals) Act 2019, for
“1 January 2023” substitute “5 July 2025”.
(2) In section 39 of the Justice Legislation
Amendment (Criminal Appeals) Act 2019, for
“1 January 2024” substitute “5 July 2026”.

As to whether this delay is a good thing or a bad thing, it is probably a positive thing for potential appellants who wish to appeal Magistrate’s Court decisions which involved issues that have been identified subsequent to the initial hearing.