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If you believe your verdict in court was unfairly decided or the penalty you received was too severe for the offence you committed, you may be able to appeal your case. 

The Director of Public Prosecutions (DPP) can appeal against your sentence if it is thought that the sentence was inadequate. 

You can give yourself an effective appeal case against your conviction or the severity of your sentence by contacting experienced criminal defence lawyers. At S.A.S Lawyers, we provide honest and realistic advice and can assist you through the appeal process. It is our goal to deliver a strong defence for your case and provide the best possible outcome for your situation.


CONVICTION APPEAL

 

If you believe that your guilty conviction was wrong or unfair, you can lodge a conviction appeal to overturn that finding.

NOTICE OF INTENTION TO APPEAL

After the finalisation of your matter in the Local or District Court, you will have 28 days to lodge a Notice of Intention to Appeal (NIA).

The Registrar can grant a 3-month extension if you can provide a sufficient reason to support an application extension. It is also not uncommon for the Registrar to grant more than one extension. It is up to the discretion of the Registrar whether your reason will enable a granted extension. 

If you change your mind and do not wish to go ahead with an appeal it is not required that you formally advise the Court or the Director of Public Prosecutions (DPP). 

If your Intention Notice is granted you will have the opportunity to file for a Notice of Appeal. If you do not file for this the Intention Notice will expire and this will be an indication that you are not going ahead with an appeal. 

NOTICE OF APPEAL 

After filing the Notice of Intention to Appeal (NIA), an applicant will have 6 months to file a Notice of Appeal (often prepared by your lawyer). This will include the grounds of your appeal and your written submission to support your grounds. 

The appellant court will not list your appeal for a hearing until a Notice of Appeal is filed. 

Once you have lodged a Notice of Appeal you will be referred to as the “appellant” in court.

The Registrar can grant extended time to file a Notice of Appeal if you can provide a sufficient reason to support an application extension. This is known as seeking “leave to appeal out of time”. 

THE HEARING 

After a Notice of Appeal is filed, the matter will then be listed for a ‘Mention’ before the appellant court to set a hearing date. 

The hearing will be before a District Court in an appeal from the Local Court. 

The hearing will be before the NSW Criminal Court of Appeal (NSWCCA) in an appeal from the District Court. 

At the hearing, the Judge will review the transcripts, exhibits, written submissions, the arguments of the defence and prosecution, the relevant legislation and prior cases. The Judge will then reach a decision on the matter.

 What is a transcript? 

A transcript includes the oral evidence given by witnesses and the Magistrate’s Judgement in the Local Court proceeding. 

What are exhibits? 

Exhibits include items tendered during the Local Court proceeding. This can include police statements and interviews, any tangible evidence such as clothing or weapons or other evidence like phone call recordings or bank statements. 

APPEALS FROM THE LOCAL TO DISTRICT COURT 

In an appeal to the District Court, the evidence given the Local Court will be reviewed by the District Court Judge who will come to his or her own conclusion. It is not a matter of determining whether the Magistrate in the Local Court ‘got it wrong’. This is referred to as a rehearing of the case. 

For a conviction appeal, you cannot introduce new or fresh evidence on appeal unless the Judge grants leave as set out in section 18 of the Crimes (Appeal and Review) Act 2001 (NSW).

A District Court Judge will only grant leave if there are substantial reasons that are in the interest of justice for new and fresh evidence to be given. 

The options available in a District Court appeal: 

  1. A District Court Judge can set aside the conviction by the trial judge. This will result in an acquittal by quashing the guilty verdict and dismissing the charges
  2. A District Court Judge grants leave. This is where the District Court Judge will set aside the guilty verdict and conviction by the trial judge and remit the case to the Local Court for a re-trial
  3. A District Court Judge can dismiss the appeal

APPEALS FROM THE DISTRICT COURT TO THE SUPREME COURT

The NSW Criminal Court of Appeal (NSWCCA) will hear appeals from the District Court. The only grounds you can rely upon for a conviction appeal to the NSW Criminal Court of Appeal (NSWCCA) are grounds related to an error or errors of law. You cannot introduce new or fresh evidence on appeal. 

Grounds for a conviction appeal include:

  • The District Court Judge misdirected the jury about a rule or aspect of the law 
  • The Court exercised error in their discretion to allow or exclude evidence in the trial
  • The absence of fresh evidence at the District Court trial 
  • The conviction was unreasonable and/or was not supported by sufficient evidence 
  • Procedural unfairness 
  • A miscarriage of justice from a legal representation 

The options available in the NSW Criminal Court of Appeal (NSWCCA): 

  1. The Court can overturn the conviction. This will result in an acquittal by quashing the guilty verdict and dismissing the charges
  2. The Court grants leave. The Court will direct a re-trial
  3. The Court can dismiss the appeal 

APPEALS TO THE HIGH COURT

An appeal to the High Court of Australia is extremely rare and requires the applicant to seek ‘special leave’. 

The High Court of Australia comprised of 7 judges known as ‘Justices’. The number of Justices that will hear an appeal in the High Court will depend on the complexity, nature and importance of the issues involved. 

THE PROCESS 

 


SENTENCE APPEAL

 

If you believe the penalty imposed by the Court was too severe for your offence, you can lodge a sentence appeal to reduce your sentence.

NOTICE OF INTENTION TO APPEAL

After the finalisation of your matter in the Local or District Court, you will have 28 days to lodge a Notice of Intention to Appeal (NIA).

The Registrar can grant a 3-month extension if you can provide a sufficient reason to support an application extension. It is also not uncommon for the Registrar to grant more than one extension. It is up to the discretion of the Registrar whether your reason will enable a granted extension. 

If you change your mind and do not wish to go ahead with an appeal it is not required that you formally advise the Court or the Director of Public Prosecutions (DPP). 

If your Intention Notice is granted you will have the opportunity to file for a Notice of Appeal. If you do not file for this the Intention Notice will expire and this will be an indication that you are not going ahead with an appeal. 

NOTICE OF APPEAL 

After filing the Notice of Intention to Appeal (NIA), an applicant will have 6 months to file a Notice of Appeal (often prepared by your lawyer). This will include the grounds of your appeal and your written submission to support your grounds. 

The appellant court will not list your appeal for a hearing until a Notice of Appeal is filed. 

Once you have lodged a Notice of Appeal you will be referred to as the “appellant” in court.

The Registrar can grant extended time to file a Notice of Appeal if you can provide a sufficient reason to support an application extension. This is known as seeking “leave to appeal out of time”. 

THE HEARING 

After a Notice of Appeal is filed, the matter will then be listed for a ‘Mention’ before the appellant court to set a hearing date. 

The hearing will be before a District Court in an appeal from the Local Court. 

The hearing will be before the NSW Criminal Court of Appeal (NSWCCA) in an appeal from the District Court. 

At the hearing, the Judge will review the transcripts, exhibits, written submissions, the arguments of the defence and prosecution, the relevant legislation and prior cases. The Judge will then reach a decision on the matter. 

What is a transcript? 

A transcript includes the oral evidence given by witnesses and the Magistrate’s Judgement in the Local Court proceeding. 

What are exhibits? 

Exhibits include items tendered during the Local Court proceeding. This can include police statements and interviews, any tangible evidence such as clothing or weapons or other evidence like phone call recordings or bank statements. 

APPEALS FROM THE LOCAL TO DISTRICT COURT 

In an appeal to the District Court, the evidence given the Local Court will be reviewed by the District Court Judge who will come to his or her own conclusion. It is not a matter of determining whether the Magistrate in the Local Court ‘got it wrong’. This is referred to as a rehearing of the case. 

For an appeal against the severity of the sentence that was imposed, you will be able to introduce new or fresh evidence as set out in section 17 of the Crimes (Appeal and Review) Act 2001 (NSW).

The options available in a District Court appeal: 

  1. A District Court Judge can set aside the original sentence and impose a more lenient sentence
  2. A District Court Judge can set aside the original sentence and impose a heavier sentence. However, if this is the case, the Court will provide an opportunity for you to withdrawal your appeal and your sentence will remain the same. 
  3. A District Court Judge can dismiss the appeal

APPEALS FROM THE DISTRICT COURT TO THE SUPREME COURT

The NSW Criminal Court of Appeal (NSWCCA) will hear appeals from the District Court. To appeal a sentence imposed by the District Court Judge you will be required to seek a Criminal Court of Appeal leave to make the appeal. If there are grounds for your appeal, a leave will be granted. 

In most circumstances, you will not be allowed to introduce new evidence if there was an opportunity to present that evidence in the lower courts. The NSW Criminal Court of Appeal (NSWCCA) may consider new evidence if it would have been regarded as significant in the District Court but for certain reasons the evidence was not presented to the District Court Judge. These reasons may include that you did not know about the evidence at the time of the District Court of appeal or did not realise the significance of the evidence, which usually occurs in circumstances where your lawyer/s were unaware of its existence.

New evidence that have occurred after the original sentence may be taken into account in the NSW Criminal Court of Appeal (NSWCCA). For example, if you have evidence of rehabilitation progress. 

Grounds for a sentence appeal include:

  • The original sentence was too severe. Where the sentence imposed is drastically different to other sentences imposed in other cases. 
  • The sentencing Judge failed to factor material considerations 
  • The sentencing Judge errored in relation to the facts of the case 
  • The sentencing Judge factored for matters that were irrelevant 
  • The sentencing Judge applied incorrect principles of sentencing   
  • Fresh evidence 

The options available in the NSW Criminal Court of Appeal (NSWCCA): 

  1. The Court can impose a new and more lenient sentence 
  2. The Court can impose a new and impose a heavier sentence. However, if this is the case, the Court will provide an opportunity for you to withdrawal your appeal and your sentence will remain the same. 
  3. The Court can dismiss the appeal

APPEALS TO THE HIGH COURT

An appeal to the High Court of Australia is extremely rare and requires the applicant to seek ‘special leave’. 

The High Court of Australia comprised of 7 judges known as ‘Justices’. The number of Justices that will hear an appeal in the High Court will depend on the complexity, nature and importance of the issues involved. 

THE PROCESS 

 


ALL GROUNDS APPEAL

 

After you have been convicted and sentenced, you have the option to lodge an all grounds appeal. This is an appeal against both the conviction and the severity of the sentence.

In this case, if the appellant court determines you are still guilty of the offence the court can still impose a more lenient sentence. 


BAIL APPLICATION ON APPEAL

 

A person that has been convicted and sentence and has lodged an appeal can apply for a bail application. If this is the case, you should apply for bail immediately. 


FAILING TO APPEAR IN COURT

 

An Annulment application, also known as a section 4 application, is used to overturn a conviction and/or sentence that was decided in the Local Court in a defendant’s absence. 

The Local Court is able to convict and sentence a defendant for certain offences without needing the defendant to make an appearance in court. 

If, due to your absence, you have been sentenced, convicted, disqualified and/or fined for a criminal or traffic offence, section 4 of the Crimes (Appeal and Review) Act 2001 (NSW) authorises you to appeal and potentially reverse this decision through an Annulment application. 

If an application is successful you will be reverted back to your original position where the process will start again and you will have the option to plead guilty or not guilty for your charges.

HOW TO APPLY? 

An annulment application can only be made after you have been convicted or sentenced in the Local Court. 

First, you will need to fill out an ‘Application to the Local Court’. This application is made available from any Local Court Registry or can be downloaded from the Local Court website. 

If there are any details on this form that you are struggling to answer, they will usually also be sourced on the Court Attendance Notice that you received when you were charged with an offence. 

After filling out an application, your matter will be given a ‘hearing date’ and the Local Court registrar will notify all the relevant parties of the new court date, time and location for the annulment application to be heard in court.

Grounds for an Annulment Application:

You will be required to provide evidence in the Local Court outlining the grounds of your annulment application. The court will grant an annulment application if it is satisfied that: 

  1. The order was made in your absence and 
  2. You were not aware of the Local Court date until after the sentence or conviction imposed in your absence or 
  3. You were unable to attend court due to an illness, accident, personal tragedy or any other compelling reason or 
  4. It will be in the interests of justice to annul the orders because of the circumstances of your case. 

WHAT ARE THE TIME LIMITS FOR AN ANNULMENT APPLICATION? 

An annulment application can be filed within 2 years from the date of your sentence or conviction. 

WHAT WILL THE COURT CONSIDER?

In the Local Court, a Magistrate will consider: 

  1. The grounds of your application
  2. Any supporting material you provided 
  3. Verbal submissions from both parties
  4. Any other circumstances 

The Magistrate will then consider whether it will be in the interests of justice to overturn your previous sentence or conviction. 

Any supporting material can include; evidence of address changes or medical certificates or any other evidence that you provided.

WHAT HAPPENS WHILE WAITING FOR THE DECISION OF MY APPLICATION?

In the waiting period between making an annulment application and your annulment application being determined in court, what happens to your existing sentence? 

Under section 7 of the Crimes (Appeal and Review) Act 2001 (NSW) the Local Court is able to ‘stay the execution’ of the sentence. This means that if the execution of the sentence is stayed, the sentence will be temporarily stopped and have no effect until after the annulment application is decided. 

This outcome will not be the same for licence disqualifications. If your licence was disqualified in the Local Court in your absence, this disqualification will remain imposed until and if, the Local Court grants your annulment application. 

WHAT IF I AM SUCCESSFUL? 

If a Magistrate grants your annulment application your conviction or sentence will be reserved. 

  • If your received a criminal conviction, you will no longer have that conviction. 
  • If your driving licence was disqualified, you will be able to drive again.
  • If you incurred demerit point, you will gain those points back. 
  • If you were fined, you will no longer have to pay that fine or the amount you paid will be refunded.

Did you plead guilty? 

If you had originally given a guilty plea to your charge and it was the sentence that was determined in your absence, you will be re-sentenced and a different penalty may be imposed.

If you had not given a guilty or not guilty plea and a conviction was determined in your absence, you will be given the option to lead guilty or not guilty to the charges. 

If you plead guilty, the matter will proceed to a sentencing hearing. 

If you plead not guilty, the matter will proceed as normal towards a defended hearing. 

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