An appeal is a request by a party to a proceeding to re-consider a decision made by another court.

A conviction appeal occurs when a person appeals the finding of guilt imposed by a Local Court magistrate. This would mean that as a question of law, they are contending that they were not guilty of the offences beyond a reasonable doubt.

 

A person who has been found guilty after a Local Court Hearing has an automatic right of appeal to the District Court.

Section 18 of the Crimes (Appeal & Review) Act 2001 (NSW) stipulates that an appeal against conviction entails a re-examination of the evidence presented during the Local Court proceedings. However, there exists a provision outlined in section 19 of the same Act, allowing for the consideration of “fresh” or supplementary evidence.

Typically, the appeal process involves the Judge reviewing the transcript of the Local Court hearing, examining any relevant exhibits, and considering the arguments presented by the defence and the solicitor representing the Department of Public Prosecutions .

The introduction of additional evidence is subject to specific conditions and requires the court’s permission before it can be considered admissible.

In most instances, cases are adjudicated based on the transcript of evidence presented during the Local Court hearing. Should an appellant seek to introduce fresh evidence or cross-examine a witness on additional matters, they must obtain permission from the District Court Judge. This permission, known as “leave,” is granted only if the District Court deems it necessary in the interests of justice to consider the new evidence. It’s important to note that leave isn’t automatically granted; there must be compelling reasons justifying the introduction of fresh evidence.

 

Reasons for filing a conviction appeal

There are various reasons why someone might file an appeal against a conviction, including:

  • Legal errors.
  • Insufficient evidence.
  • Ineffective assistance of counsel.
  • New evidence has come to light.
  • Misconduct (for example police or prosecutorial misconduct).
  • Violation of rights.
  • Sentencing errors.

 

Process of filing a conviction appeal

A person has 28 days from the date that the sentence was imposed to lodge a conviction appeal. A person must seek leave of the court (get permission) to file a conviction appeal for up to three months after the date of the sentence to file an appeal.

The prescribed form can be downloaded from the Local Court website.

When a Notice of Appeal is lodged, any sentence, penalty, restitution, compensation, forfeiture, destruction, or disqualification is stayed. This means that the penalty is put on hold pending the outcome of the appeal, with some exceptions:

  • If the appeal is not lodged within 28 days after the Local Court sentence, then no stay is granted until the District Court grants leave.
  • If there is a custodial sentence and the defendant is refused bail, they will continue serving the sentence until the appeal is heard.
  • If police issued a licence suspension or disqualification prior to the original court proceedings, these orders will not be stayed. However, the District Court may stay the suspension if it considers a stay to be appropriate in the circumstances.

 

Do I need a lawyer for a conviction appeal?

In conviction appeals, lawyers play a pivotal role in guiding clients through the complex legal process. They meticulously analyse trial records, identifying potential errors and crafting strategic arguments grounded in legal principles and precedents. Through meticulous brief writing and persuasive oral advocacy, they present compelling cases before appellate courts, aiming to overturn wrongful convictions or secure more favourable outcomes. Lawyers also assist in gathering new evidence and preparing witnesses, ensuring a comprehensive and effective appellate presentation.

 

Orders that can be made

The potential outcomes are as follows:

  • The District Court may set aside the guilty verdict and conviction, acquit you, and dismiss the charge(s).
  • If the appeal requires leave from the District Court, they may set aside the finding of guilt and conviction and remit the case back to the Local Court to be redetermined.
  • The District Court may dismiss the appeal.

 

How can we help?

Nyman Gibson Miralis provides expert advice and representation in conviction appeals at every level of the court system.

Contact us if you require assistance.