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Court Appeals
Think the Court Got It Wrong? You May Have the Right to Appeal
Being found guilty or receiving an excessive sentence in court can feel devastating. But the story doesn't always end there!
In New South Wales, if you are dissatisfied with the outcome of your court proceedings, you may have a right to appeal against the decision.
What is an appeal?
An appeal occurs when you ask a court sitting in a higher jurisdiction to review or vary a decision made by the lower court – usually because you believe it is wrong or unfair.
Mistakes can happen, and the law gives you the right to challenge those decisions under certain circumstances.
If you are considering an appeal, it is crucial that you speak with an experienced criminal lawyer to determine whether your appeal has any prospects of success.
Types of appeals
An appeal can be lodged against the severity of a sentence imposed or the verdict of a court in a lower jurisdiction.
Both the defence and the prosecution have the right to appeal against a decision if they believe that it was manifestly excessive, unjust, or it is considered that an error of law was made.
Appeal against conviction
An appeal against conviction occurs where a person has been found guilty of an offence in a lower court and they seek to challenge that conviction in a higher jurisdiction. The most ordinary case is an appeal against conviction from the Local Court to the District Court.
Pursuant to 18s of the Crimes (Appeal and Review) Act 2001 (NSW) ('the Act'), an appeal of this nature occurs by way of a rehearing of the evidence in the original proceedings.
It is for that reason that it is often common practice for a transcript of the original proceedings to be provided in your appeal. If you intend to rely upon "fresh evidence" (in other words, evidence which was not heard and determined in the original proceedings), you will need to seek the leave of the Court and demonstrate that it is in the interests of justice for the fresh evidence to be considered.
Appeal against sentence
An appeal against sentence occurs when the penalty imposed against a person is manifestly excessive.
From the moment that you file the appeal, the original sentence is "stayed". This means that the penalty imposed against you is put on hold pending the outcome of the appeal against severity.
Where you have been sentenced to a term of imprisonment, you may be required to make an application for bail pending the appeal.
Where you have been sentenced to a community based sentence of imprisonment, you will be required to file an application for bail in order for the conditions of that order to be put on hold.
Once in the higher jurisdiction, the judicial officer will review the sentence handed down in the original proceedings. This will include a review of all relevant material and any submissions made on behalf of the defence and prosecution.
The Court may then either:
- Allow the appeal, set aside the original sentence and vary the original sentence, or
- Dismiss the appeal.
If your appeal is dismissed, then the sentence handed down in the original proceedings will remain enforceable against you. Before filing your appeal, it is important that you are aware that the Court does have the discretion to increase the penalty imposed in the original proceedings. This is commonly referred to as a "Parker warning". What this means is that the judicial officer is considering a harsher penalty. If such a warning is given, you have the option of withdrawing your appeal and accepting the original sentence, or proceed with the appeal despite the warning.
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Appeals Frequently Asked Questions
How long do I have to file my appeal?
You will have 28 days from the date of the original decision to file your appeal.
If you don't file within 28 days, you may still be able to press your appeal with the leave of the court. This is if the appeal was lodged within 3 months of the conclusion of the original proceedings.
Time is critical. Appeals are time sensitive.
If you're thinking about appealing, speak to one of our experienced criminal lawyers.