Chapter 13: Appeals

This section covers:

  • how to appeal;
  • appeals against magistrate and jury convictions;
  • appeals against sentence; and
  • special inquiries.

Always appeal a decision you can't accept — and do it as soon as possible. Appeal forms are available from any Clerk of the Local Court, or the Registry of the District or Supreme Courts. They are also available at the State's prisons. An appeal may be against conviction, or against the severity of a sentence, or both.

In some cases you may consider the penalty too small to bother with the time and expense of an appeal. You need to weigh this inconvenience against the desirability of removing a conviction from your police record.

All jurisdictions have a provision where an offence can be 'proven' but the court does not proceed to a conviction. If there is to be no penalty and ultimately no conviction recorded, it may be hard to justify the effort of appealing.

Appeals from the Local Court to the District Court are regulated by law; while another law regulates appeals from the District Court or Supreme Court to the Court of Criminal Appeal (CCA).

See these texts for detail:

  • Criminal Practice and Procedure NSW by R Howie and P Johnson, Butterworths;
  • Criminal Investigation and Procedure Victoria by Ian Freckelton, Thomson Reuters;
  • Lawyers Practice Manual Victoria, Thomson Reuters;
  • Lawyers Practice Manual Queensland, Thomson Reuters.

Search the catalogue of a large library (for example, a university library or State library) to find the current editions of these books.

How to appeal

Make sure you lodge any appeal promptly. An appeal against conviction or sentence (or an application for leave to appeal) from the Local Court to the District Court must generally be lodged within 28 days of the sentence being imposed.

You can appeal 'as of right' by lodging a written notice of appeal with the Registrar of any Local Court or, if you are in custody, with the person in charge of the jail. Your notice of appeal must state the general grounds of appeal. Alternatively, you can apply for leave to appeal by lodging a written application for leave, together with a written notice of appeal. This application must state your general grounds for seeking leave to appeal.

If you miss the 28-day time limit, you can lodge a late application for leave to appeal up to three months after your conviction or sentence date, but you must state the reasons why your application is late. The court generally will not grant you leave to appeal unless it is satisfied that it is 'in the interests of justice' to do so.

The Registrar will notify you of the time and place set for your hearing. If you have been sentenced to a short jail sentence, appeals bail (bail granted while you are awaiting an appeal on conviction or sentence) may be given. With longer prison sentences, appeals bail is very hard to obtain.

Application for annulment

If you have been convicted or sentenced in a Local Court in your absence, you can apply for an annulment of the conviction or sentence. You must lodge an application for annulment with a Registrar of that Local Court within two years of the date of conviction or sentence, or you may apply directly to the Minister.

The Local Court must grant the annulment if it is satisfied that you were not aware of the original proceedings until after they were complete; that you were hindered by an accident, illness or other cause from attending (or otherwise taking action in relation to) the original proceedings; or that it is in the interests of justice to do so. Note that this does not mean that the court will dismiss the charges against you. If the court grants the annulment, it will then hear the original charges afresh, either immediately or at a later date.

Appeals against conviction

Generally, you have a right to appeal any conviction or sentence from the Local Court to the District Court, provided you lodge your appeal within the required time period. However, you will need the District Court's leave to appeal against your conviction if you have been convicted in your absence, or if you were convicted following a guilty plea.

You can appeal against your conviction, or sentence, or both. If in doubt, appeal against both. It is easier to narrow your grounds at the hearing, than to broaden them.

Appeals against a NSW Local Court conviction were previously heard by way of a new hearing in the District Court. This is no longer the case. An appeal against conviction is now generally heard on the basis of certified transcripts of evidence from the original Local Court proceedings. You can apply for the court's leave to admit fresh evidence, but it may only do so if it is satisfied that it is in the interests of justice that the evidence be admitted. Generally, the court will only permit oral evidence from witnesses in such an appeal if it is satisfied that there are substantial reasons why, in the interests of justice, the person should give evidence.

It is also possible to appeal from the Local Court to the Supreme Court. You can appeal a conviction or sentence to the Supreme Court 'as of right' on a ground that involves a question of law only; or with the court's leave, on a ground involving a question of fact, or a question of mixed law and fact.

The Supreme Court may decide to set aside the conviction; set aside the conviction and send the matter to the original Local Court for re-determination, or dismiss the appeal.

Appeals to higher courts

If you have been convicted of an indictable offence in either the District Court or Supreme Court, you can apply to the Court of Criminal Appeal (CCA) against your conviction:

  • on any ground involving a question of law alone; or
  • with the court's leave (or with a certificate from the trial judge), on any ground that involves a question of fact alone, or a question of both fact and law, or any other ground that appears to the court to be a sufficient ground for appeal.

The CCA considers whether evidence was properly admitted at trial, and whether the judge gave proper directions in law to the jury. The court may allow the appeal if it considers that the verdict was unreasonable or cannot be supported on the evidence; that it was wrong in law; or that on any other ground there was a miscarriage of justice.

However, even if the CCA decides that there was an error, it may still dismiss the appeal if the judges consider that no substantial miscarriage of justice has occurred.

The CCA may look at fresh evidence, but only if that evidence was not available to the defence at the trial. For these reasons, it is most important, in a jury trial, that you obtain and present all the evidence that you wish to rely on.

The High Court of Australia can review all the decisions of State Supreme Courts, but in criminal cases there is no automatic right of appeal to the High Court. You have to seek special leave to appeal. The High Court may consider any matters that it considers relevant in determining whether to grant leave. Factors that it must consider are whether the original proceedings involve a question of law, or whether the interests of the administration of justice require the court to consider the original judgment.

There is rarely any appeal that can be made in relation to disagreements between you and your lawyer. For instance, it's nearly impossible to argue that your lawyer didn't present your case properly. Except in extreme cases, the appeal court will say that they are not interested in any differences you had with your lawyer, and that you should have sorted them out. The bottom line to this is that if you are unhappy with the way your lawyer presents your case during a hearing or trial, and if you cannot resolve your differences, your only option is to sack her or him ('withdraw your instructions') and conduct the case yourself. If you prepare for this possibility, at least you will remember your responsibility for your own case. See Self-representation for more information.

While the prosecution may appeal against a sentence they consider too light (see below), they currently cannot appeal against a jury acquittal.

If you are finally acquitted, you can apply to the Police Commissioner to have your fingerprints and police photos destroyed. This is, however, at the discretion of the Commissioner and appears impossible to legally enforce. You can try.

Appeals against sentence

Appeals against the severity of a sentence follow a similar course to appeals against conviction. Appeals from the Local Court go to the District Court (or the Supreme Court), and appeals from the District or Supreme Court go to the CCA.

If there is clear evidence that you are guilty, but you feel the sentence imposed was too severe, then it is a good idea to appeal the sentence. Otherwise you also have the right to appeal the conviction. Of course, you may appeal both.

An appeal to the District Court is heard by way of a rehearing of the evidence given in the original proceedings, and fresh evidence may be admitted. However, if the judge is considering increasing the sentence imposed by the magistrate, she or he must warn you of this and give you the opportunity to withdraw your appeal.

If you want to appeal your sentence to the CCA, you must apply for leave to do so. Generally, you will need to argue that the original decision involved an error in principle. That is, the judge considered an issue she or he should not have, or did not properly take into account another matter. The CCA will not vary a sentence just because they disagree with it. If the court varies your sentence, the time that you have already served in prison, awaiting appeal, will count.

The prosecution is allowed to appeal sentences imposed by the District Court. The prosecution may also appeal against any sentence imposed in the Local Court. This appeal must be brought within 28 days of the date the sentence was imposed.

Special inquiries in New South Wales

A special provision in the NSW Crimes Act (s 475; later s 474) is used to allow for an inquiry to review a conviction, following a petition to the Governor or an application to the Supreme Court. These inquiries could be granted if there was a doubt or question as to your guilt, or as to any mitigating circumstances or any part of the evidence in the case. These special inquiries provisions in New South Wales have now been brought under the Crimes (Appeal and Review) Act 2001.

In States other than New South Wales, or for federal offences, the equivalent special inquiry into a conviction has been a Royal Commission ordered by the government. These are very difficult to obtain and require substantial public pressure.

Further reading

Find more information from Legal Aid NSW:

  • A guide to indictable appeals -  gives information about indictable appeals: if you are tried or sentenced in either the District or Supreme Courts and you appeal, it is called an “indictable appeal”, which go to the Court of Criminal Appeal
  • Appealing to the District Court - provides information on your rights to appeal to the District Court against orders made in the Local or Children’s Court when you were present at court
  • Reviewing Local Court decisions - explains what you may be able to do if you have had a criminal, traffic or apprehended violence (AVO) matter listed in the Local Court of NSW and you missed the court date