Appeals

Appeals are to the District Court, Supreme Court, Court of Criminal Appeal, or High Court depending on where the original proceedings were finalised.

District Court Appeals

Two main types of Appeal are heard at the District Court. Those are:

  1. Appeals against a sentence imposed by a Local Court Magistrate whether it follows a defended hearing or a plea of guilty (known as a severity appeal);
  2. Appeals against a decision by a Local Court Magistrate that you are guilty of an offence following a defended hearing (known as a conviction appeal).

How do I lodge an Appeal to the District Court?

An Appeal is be lodged either the registry of any Local Court or with the person in charge of the correctional centre where the Appellant is being held in custody.

A severity or conviction appeal must be lodged within 28 days after the sentence/conviction being imposed by the Magistrate. If the appeal is not lodged within 28 days, but before 3 months has elapsed, you may apply to the District Court for leave to hear your Appeal.

What happens if I lodge an Appeal to the District Court?

Any sentence, penalty, or driver’s license disqualification arising as a consequence of the conviction, is stayed (does not come into effect) until the Appeal is determined. However, if you are sentenced to a term of imprisonment and refused bail, the gaol sentence continues to be in force. If the District Court affirms the decision of the Local Court then the days in custody on remand will count towards your sentence.

What happens at the District Court?

In the case of a severity appeal, the Director of Public Prosecutions will provide the judge with a bundle of documents including court attendance notices, police facts sheet, criminal/traffic records, and any other documents that the Magistrate had when they imposed the sentence including references. You may be called to give evidence and fresh evidence can be tendered in support of your case e.g. new references, psychological reports and medical evidence.

In the case of a conviction appeal, the appeal is a rehearing on the basis of evidence in the Local Court proceedings. Normally a conviction appeal is determined by the Judge reading the transcript of the Local Court hearing and hearing submissions made by your lawyer and the Director of Public Prosecutions. It is possible to call fresh evidence or recall witnesses with the leave of the District Court is needed. Leave will only be granted if the District Court is satisfied that it is in the interests of justice. It is not unusual for leave to be granted where a person has been self-represented in the Local Court.

What happens at the end of the Appeal?

The District Court can:

  1. Quash the conviction and find you not guilty in the case of a conviction appeal;
  2. Set aside the sentence and vary the sentence in the case of a severity appeal;
  3. Dismiss the appeal and affirm the sentence or conviction.

Appeals to the NSW Court of Criminal Appeal

The Court of Criminal Appeal is the State’s highest court for criminal matters. A person who has been convicted or who pleaded guilty and been sentenced by a Supreme Court or District Court judge, may appeal to the Court of Criminal Appeal. Appeals may also be brought from decisions of the Land and Environment Court in its criminal jurisdiction.

The main types of Appeal heard in the NSW Court of Criminal Appeal are:

  • An error of law in respect to the severity of a sentence.
  • An error of law in respect to the finding of guilt of the appellant. There are a number of grounds for appeal, including a challenge to a conviction involving a question of law. The Court of Criminal Appeal may also grant leave to appeal in matters involving questions of fact or mixed questions of fact and law.
  • An error of law in respect to the acquittal of an accused.

How is my Appeal lodged?

The appellant must file a Notice of Intention to Appeal within 28 days from sentence. However, if the Notice of Intention to Appeal is not filed within this time, the Court is normally flexible in granting leave to appeal.

The Appellant must lodge a Notice of Appeal within 6 months of filing the Notice of Intention to Appeal. If the appeal is not lodged within 6 months, the Appellant can seek an extension from the Registrar of the Court of Criminal Appeal.

When filing the Notice of Appeal the applicant must also file the following documents:

  • Grounds of appeal
  • Submissions on appeal
  • Certificate under rule 23C of the Criminal Appeal Rules.

Who hears my appeal?

Appeals are generally heard by three judges, although five judges may sit when significant legal issues need to be considered. If the judges do not agree, the majority view prevails. When sentence appeals do not involve a dispute on any issue of legal principle, only two judges need to sit.

Appeals to the High Court

The High Court of Australia is able to deal with cases which come to it on Appeal.

Cases which involve interpretation of the Constitution, or where the Court may be invited to depart from one of its previous decisions, or where the Court considers the principle of law involved to be one of major public importance, are normally determined by a full bench comprising all seven Justices if they are available to sit.

Other cases which come to the High Court for final determination involve appeals against the decisions of the NSW Court of Criminal Appeal and these are dealt with by a full court of not less than two Justices. In addition there are certain matters which can be heard and determined by a single Justice.

There is no automatic right to have an appeal heard by the High Court and parties who wish to appeal must persuade the Court in a preliminary hearing that there are special reasons to cause the appeal to be heard. Decisions of the High Court on appeals are final. There are no further appeals once a matter has been decided by the High Court, and the decision is binding on all other courts throughout Australia.

Supreme Court Bail

If you are refused bail, you will remain in custody at a correction centre on remand at least until your case is finalised. However, you can appeal a decision to refuse you bail made either by a Local Court Magistrate or District Court judge.

What happens at a Supreme Court bail application?

The judge will want to hear evidence from people who will support your bail application. These could include people you might live with or people who will put up money or property to secure your bail. When you know the date of your bail application, we will contact these people and ask them to be at the court to give evidence.

If you want to do residential rehabilitation while you are on bail, the main way you can be assessed for rehabilitation if you are in custody is by way of a request from a court. When you first appear in the Supreme Court, you ask the Court to request a drug and alcohol assessment and then it is adjourned for 4–6 weeks for the assessment to be done. Then when your bail application is heard, there will be a letter before the Court from the centre, saying they have accepted you, and detailing the program. It helps if you have someone who can pick you up from gaol and take you directly to the centre.

If you are granted bail, the bail is usually conditional. Common conditions usually include:

  • That you are to reside at a certain address.
  • That you observe requirements as to your conduct while on bail. This may include a curfew, reporting to police, restrictions on you associating with specified persons or visiting specified places.
  • That one or more acceptable person(s) acknowledge that they are acquainted with you and regard you as responsible and likely to comply with the bail undertaking.
  • That you and/or one or more acceptable person(s) will forfeit an amount of money if you fail to comply with your bail undertaking.
  • That you surrender any passport held by you.

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