113AAlternative appeals in certain cases

### 113A Alternative appeals in certain cases > *\[Section 113A Inserted by No. 108 of 1974, s. 30 \]* > > > (1)  A person who is aggrieved by an order made by a court of petty sessions (other than one constituted by a magistrate) may appeal to a magistrate as provided in this section. > > > (2)  *\[Section 113A Subsection (2) amended by No. 71 of 1993, s. 9 \]*An appellant shall, within 21 days after the making of the order to which the appeal relates, serve on the person concerned in upholding the order, and on the appropriate clerk of petty sessions, a notice of appeal setting forth the grounds of the appeal. > > > (3)  *\[Section 113A Subsection (3) amended by No. 45 of 1987, s. 21 and Sched. 1 \]*A clerk of petty sessions shall, on receipt of a notice of appeal, transmit a copy of the notice to the Chief Magistrate. > > > (4)  *\[Section 113A Subsection (4) amended by No. 45 of 1987, s. 21 and Sched. 1 \]*[*\[Section 113A Subsection (4) substituted by No. 23 of 2009, s. 29, Applied:16 Jun 2009\]*](/view/html/inforce/2009-06-16/act-2009-023#GS29@EN) The Chief Magistrate is to give – > > > > > > (a) the appellant or his or her lawyer; and > > > > > > > (b) the person concerned in upholding the order or his or her lawyer – > > > > 14 days' notice of the day on which and the place at which an appeal under this section is to be heard. > > > (5)  An appeal under this section operates as a stay of execution of the order appealed against – > > > > > > (a) in respect of the payment of money; and > > > > > > > (b) in respect of the imprisonment of the appellant, if a justice, in his discretion, admits the appellant to bail – > > > > > > > > > > (i) with such surety or sureties as the justice may require; and > > > > > > > > > > > (ii) to appear on the appeal and at every time and place to which, during the course of the proceedings, the hearing may be from time to time adjourned. > > > (6)  Except as provided in [subsection (5)](#GS113A@Gs5@EN) , a magistrate or any 2 justices may, on summons to the respondent, and on such terms and conditions as seem fit to him or them, stay any proceedings upon an order appealed against, or suspend its operation *ab initio*. > > > (7)  If an appellant proceeds under [section 107](#GS107@EN) , he shall be deemed to have waived his right of appeal under this section, and any proceedings taken by him under this section shall be deemed to be void, and the magistrate may order him to pay any other party's costs occasioned by his appeal. > > > (8)  No appeal lies under this section against an order – > > > > > > (a) made on the appellant's plea of guilty; or > > > > > > > (b) against sentence only. > > > (9)  A magistrate may, on an affidavit setting forth reasonable grounds, enlarge the time for serving a notice of appeal or doing any act under [subsection (5)](#GS113A@Gs5@EN) , either before or after the time has expired. > > > (10)  On an appeal under this section, the magistrate – > > > > > > (a) shall hear the appeal by way of re-hearing; > > > > > > > (b) may at any time allow the grounds of appeal set forth in the notice of appeal to be amended on such terms as to costs or otherwise as the magistrate thinks fit; > > > > > > > (c) may adjourn the hearing on terms, if he considers it proper to do so; > > > > > > > (d) may exercise in relation to the appeal any power that might have been exercised by the justices against whose order the appeal is made; and > > > > > > > (e) may confirm, reverse, mitigate, or vary the order of the justices appealed against or make such other order in the matter as he thinks fit. > > > (11)  [*\[Section 113A Subsection (11) inserted by No. 23 of 2013, s. 9, Applied:01 Sep 2013\]*](/view/html/inforce/2013-09-01/act-2013-023#GS9@EN) On hearing an appeal under this section against an order the magistrate may, in exercising under [subsection (10)](#GS113A@Gs10@EN) a power in relation to sentencing (whether the person who appeals under [subsection (1)](#GS113A@Gs1@EN) is the person to whom the order relates or the prosecutor), take into account any matter relevant to sentencing that has occurred between when the order appealed against was made and when the magistrate hears and determines the appeal. > > > (12)  [*\[Section 113A Subsection (12) inserted by No. 23 of 2013, s. 9, Applied:01 Sep 2013\]*](/view/html/inforce/2013-09-01/act-2013-023#GS9@EN) Despite [subsection (11)](#GS113A@Gs11@EN) , the magistrate, in exercising in relation to an order in respect of a person a power under [subsection (10)](#GS113A@Gs10@EN) , the effect of the exercise of which is that the person is being sentenced again for an offence, must not take into account any element of double jeopardy so as to impose a less severe sentence than the magistrate would otherwise consider appropriate.