What is a criminal appeal?
A person found guilty of a crime may be able to appeal their conviction and/or sentence.
There are different types of criminal appeals:
- Severity appeal or sentence appeal: appealing against the harshness of the sentence imposed.
- Conviction appeal: appealing against the finding of guilt.
- All grounds appeal: appealing against both the conviction and the severity of the sentence.
Appealing Local Court decisions
If you have been convicted and sentence in the Local Court, you have the right to appeal to the District Court. You can appeal your sentence, conviction, or both.
In a conviction appeal, the judge will review the evidence tendered at the original hearing and read the transcript from the original hearing. They will then listen to submissions from the prosecution and your legal representative. Fresh evidence can only be tendered in a conviction appeal in specific circumstances, and requires leave (permission) of the court. The judge may set aside the conviction against you, dismiss the appeal, or in certain circumstances send the matter to the Local Court for redetermination.
In a severity appeal, the judge will review the sentence imposed by the Local Court, and fresh evidence may be given. This means that your lawyer may call you to give evidence, or someone else to give evidence about you. Psychological reports or character references may also be handed up. The judge will listen to submissions from the prosecution and your legal representative. After considering the submissions, the judge may set aside the original sentence, vary the sentence, or dismiss the appeal. If the appeal is dismissed, your sentence will remain as the original sentence imposed in the Local Court.
The appeal must be lodged within 28 days from the date you were sentenced.
Appealing District or Supreme Court decisions
If the matter was heard in the District or Supreme Courts, the conviction or sentence can be appealed to the NSW Court of Criminal Appeal. This is the highest criminal court in NSW. This is called an “indictable appeal”, because it is an appeal of a matter heard on indictment. These types of appeals are more complex than appealing a Local Court decision.
The Court of Criminal Appeal can hear three types of appeals:
- A challenge to a conviction involving a question of law,
- A challenge to a conviction involving questions of fact alone, or mixed questions of fact and law, and
- A challenge to the severity or adequacy of a sentence.
The appellant needs to obtain leave from the court to argue the second and third type of appeal.
What is required to lodge an indictable appeal?
The appellant must complete a Notice of Intention to Appeal (“NIA form”) and file it with the court within 28 days of the conviction or sentence. The application is generally granted if the NIA form is lodged in time and has merit.
To be successful in a conviction appeal, the Court must decide that the verdict should be set aside because:
- It is unreasonable or cannot be supported by the evidence, or
- The law was misapplied, or
- There was otherwise a miscarriage of justice.
A sentence appeal is not a rehearing. An appeal will not be successful simply because the appeal court considers it would have sentenced the offender differently. For the appeal to be successful, the appellant (person making the appeal) must show that the sentencing judge made an error in the exercise of his or her discretion.
Appealing NSW Court of Criminal Appeal decisions
Decisions of the NSW Court of Criminal Appeal can, in specific and rare circumstances, be appealed to the High Court of Australia. This is the highest court in the Australian judicial system. Criminal appeals only go to the High Court if there is a special reason why the case should be heard. The appellant needs to obtain the permission of the High Court to lodge an appeal.
Appeals to the NSW Court of Criminal Appeal involve complex legal arguments, involving analysis of facts, statute and case law. It is important to seek legal advice and representation before lodging an appeal.
The prosecution cannot appeal against a not guilty verdict. They can only appeal if they believe the sentence was “manifestly inadequate”, that is, too lenient. This is called a Crown appeal.