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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.
Court Appeals Frequently Asked Questions
What is a criminal appeal?
An appeal is a formal application to a higher court asking it to reconsider a decision made in a lower court. It is not a "retrial" of the case, but a specific legal review to determine whether the original decision was correct based on the evidence, the law, and the procedures followed.
What are the different types of appeals?
In NSW criminal law, there are three primary categories of appeal:
- Severity Appeal (Sentence Appeal): A challenge to the harshness or "severity" of the penalty imposed. You are asking the court to reduce your sentence or disqualification period.
- Conviction Appeal: A challenge to the finding of guilt itself. You are asking the court to set aside the conviction and find you "not guilty".
- All Grounds Appeal: A combination of both, where you challenge both the verdict and the resulting sentence.
Do I have an automatic right to appeal?
If your matter was finalised in the Local Court, you generally have an automatic "right of appeal" to the District Court. However, for appeals from the District or Supreme Court to the Court of Criminal Appeal (NSWCCA), you often must first apply for "leave" (permission) from the court to proceed. The court will grant leave if it is in the interests of justice or if the appeal has reasonable prospects of success.
What are the strict time limits for lodging an appeal?
Time is of the essence in appellate law:
- You have 28 days from the date of your sentence to file a Notice of Appeal.
- If you miss this window, you may still apply for "Leave to Appeal" within 3 months of the original order, provided you can explain the reasons for the delay.
- After 3 months, it is generally quite difficult, if not impossible, to lodge a standard appeal to the District Court.
Will my sentence be "stayed" or stopped while I appeal?
If you lodge an appeal against a Local Court decision within the 28-day window, your sentence (such as a fine, community order, or licence suspension) is usually "stayed" or suspended until the appeal is heard. However, this is not automatic for all cases:
- Mid or high-range drink driving suspensions often remain in place until the appeal is heard.
- If you have been sentenced to an Intensive Corrections Order, you will need to make an application for bail to avoid the continuation of that order.
How does the higher court review my case?
The process depends on the level of the court:
- Local to District Court for an appeal against conviction: This is a "re-hearing" of the evidence. The Judge reviews transcripts and documents but does not typically hear from witnesses again unless leave is granted to admit "fresh evidence".
- Local to District Court for an appeal against severity: This is a hearing “de novo”. The Court reviews all sentence evidence afresh and reaches its own conclusion.
- District/Supreme to NSWCCA: This is a review for "legal error" to see if the law was misapplied or a miscarriage of justice occurred.
Can my sentence be increased on appeal?
Yes, this is a significant risk. A District Court Judge has the power to increase a sentence if they believe the original penalty was too light. However, the Judge must give a "Parker Warning," alerting you that they are considering a harsher penalty. This provides you with a brief window to withdraw your appeal before the new sentence is finalised.
Can I introduce new evidence for an appeal?
Rules for new evidence differ by appeal type:
- Conviction Appeal: New or "fresh" evidence is not automatically permitted. You must demonstrate it is in the "interests of justice" and explain why it was not presented originally.
- Severity Appeal: Yes, you may rely upon updated character references or medical material to demonstrate progress in treatment or changes to your personal circumstances.
Can I appeal even if I pleaded guilty?
Yes, but your options are limited. To appeal the conviction after a guilty plea, you must first seek "leave" from the court and demonstrate that the plea was not made voluntarily or was otherwise a miscarriage of justice.
What are the possible outcomes of an appeal?
The higher court may:
- Set aside the conviction (finding you not guilty).
- Vary the sentence (reducing the penalty or disqualification).
- Dismiss the appeal (the original decision stands).
- Order a retrial or send the case back to the lower court for re-sentencing.
Why is legal representation essential for an appeal?
Appeals are intellectually demanding and require an in-depth analysis of transcripts and case law to identify "legal errors". A specialist appellate lawyer ensures your grounds are drafted correctly, prepares persuasive written submissions, and advocates forcefully to protect your future.
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