NSW Court of Criminal Appeal

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

The Court of Criminal Appeal is the highest court in New South Wales for appealing criminal cases. If your appeal involves a question about the facts or is only about sentence then the Court of Criminal Appeal must grant leave (permission) for your appeal to proceed.

The Court of Criminal Appeal can hear both conviction appeals and sentence appeals.

Grounds of appeal for conviction appeals

Grounds of appeal for conviction appeals include:

Miscarriage of justice resulting from legal representation.
Error in exercising discretion to allow or exclude evidence in trial.
New evidence has come to light.
The convictions are unreasonable and/or cannot be supported by the evidence.
Inconsistent verdicts.
Misdirection in the summing up by the judge to the jury.
Lack of procedural fairness.

Grounds of appeal for severity appeals

Grounds of appeal for severity appeals include:

The original sentence was manifestly excessive.
A specific error of law/fact.
New evidence has come to light.

Process of filing an appeal at the NSW Court of Criminal Appeal

Compared to District Court appeals, appeals to the Court of Criminal Appeal involve a much more complex process, and as such the court allows more time to prepare appeals of this kind. Firstly, within 28 days from the day of conviction or sentence, a person must lodge either:

A notice of intention to appeal, or
A notice of intention to apply for leave to appeal.

An appellant is then granted 12 months before the notice of intention to appeal expires and the defendant must file multiple documents including:

A notice of appeal.
Grounds of appeal.
Written submissions.
Certificate affirming that the transcript of the remarks, summing up and transcripts of the trial or sentence are available.
A statement outlining the lawyers appearing for the appellant.

Both the 28 day and 12 month periods can be extended by the court; however they will not always be extended.

Orders that can be made

Conviction appeals

The Court of Criminal Appeal can do any of the following:

Quash the conviction and acquit the accused person.
If an error occurred in the original court, the Court of Criminal Appeal can remit the case back to the original court for a retrial.
Dismiss the appeal if no error occurred in the original court.
Dismiss the appeal where a substantial miscarriage of justice is not found even though an error occurred in the original court.

Severity appeals

The Court of Criminal Appeal can do any of the following:

Where an error is identified in the original sentence, the Court of Criminal Appeal can quash the original sentence and re-impose a lesser sentence, the same sentence, or a greater sentence than what was imposed by the original court. A greater sentence cannot be imposed on an appeal filed by an offender. This can only happen if the Crown (prosecution) appeal.
Where an error is identified in the original sentence, the court can remit the case back to the original court with directions on what should be done regarding the issue.
Dismiss the appeal if no error occurred in the original court.
Dismiss the appeal where a miscarriage of justice is not found even though an error occurred in the original court.

How can we help?

Nyman Gibson Miralis provides expert advice and representation in conviction and severity appeals at the Court of Criminal Appeal.