Appeals - What Are Appeals and How Do They Work?

court room

Appeals play an important role in the criminal justice system in NSW. Mistakes can and do happen in the criminal justice system. An appeal can be lodged by the Prosecution or the Defence if they perceive the verdict or sentence as unjust or if they believe the Court made an error.

The Grounds of Appeal

The errors or the issues are the foundation for the grounds of appeal:


·        Evidence was presented to the jury and was ruled to be admissible when it should not have been used

·        The evidence was not adequately summarised by the Judge, and the Judge did not direct the jury appropriately

·        The conduct of the prosecutor or the defence lawyer resulted in a miscarriage of justice

·        The sentence was excessive (defence) or inadequate (prosecution)

Leave to Appeal


A person with a guilty verdict may be granted leave to appeal. Section 6 of the Criminal Appeal Act 1912 (NSW) states the Court will generally allow an appeal if it believes that:


·        The verdict was not reasonable, or the verdict cannot be supported

·        A wrong decision was made regarding a question of law

·        There was a miscarriage of justice


The Court will grant leave to appeal the severity of a sentence if:


·        An error of law was made

·        The Judge was guided by irrelevant considerations

·        The sentence was either excessive or inadequate depending on whoever appeals


Appeals from Local Court to District Court


What is an appeal?


An appeal is an application to a higher court against a guilty verdict or a sentence imposed by way of a court order. Section 11 of the Crimes (Appeal and Review) Act 2001 protects the right to appeal a conviction or the severity of a sentence. A higher court will hear and reconsider an appeal against a decision of a court. The Local Court is the lowest Court in NSW. All criminal matters originate in the Local Court. A person convicted of an offence in the Local Court, has the right to appeal the conviction to the District Court under Section 11 of the Crimes (Appeals and Review) Act 2001 (NSW) if they believe the local court outcome was either unfair or wrong.


The District Court in NSW will hear appeals from the Local Court. Appeals are brought before a District Court Judge, and these appeals from the Local Court include appeals against the severity of a sentence,  appeals against a conviction imposed, or both. 

The Three Types of District Court Appeals

·        Conviction Appeal – An applicant appeal the Local Court Magistrate’s decision of a guilty verdict

·        Severity Appeal – An applicant appeal the severity of the sentence imposed by the Magistrate

·        All grounds appeal – An applicant lodges a conviction and a severity appeal


The District Court Judge will not determine whether the Magistrate gave a wrong conviction or sentence. Instead, the appeal will involve rehearing all the evidence that was already given in the Local Court matter, in effect a rehearing of the original proceedings by way of use transcripts and exhibits. The Judge will review the evidence, base a conclusion on the evidence presented, and rehear the case.


An applicant cannot introduce new or fresh evidence with a conviction appeal unless the Judge grants leave to introduce fresh evidence under Section 18 of the Crimes (Appeal and Review) Act 2001 (NSW). A District Court Judge will only grant leave to introduce new or fresh evidence on a conviction appeal if the Judge is satisfied it would be in the interest of justice. It is easier to introduce new or fresh evidence in the District Court than in an appeal in the NSW Supreme Court of Criminal Appeal. 


Section 17 of the Crimes (Appeal and Review) Act 2001 (NSW) allows an applicant to introduce new or fresh evidence for the Judge if the appeal is against the severity of the sentence imposed. 


The Time Limit and Process to Lodge a District Court Appeal


The applicant has 28 calendar days to lodge a conviction or severity appeal from the sentencing date. The applicant needs permission from the District Court to make a conviction appeal if:


·        The applicant was convicted in Local Court in the person’s absence because the person failed to appear in Court,  or

·        The applicant pleaded guilty in the Local Court, but now wishes to change the plea to not guilty


If a person fails to appeal in 28 days from the date of sentence, a person can still lodge an appeal within 3 months after the sentencing date. The person will have to apply for leave to appeal a sentence or conviction appeal. The District Court will grant the leave to appeal if it is in the interest of justice. 


A person will need to outline compelling reasons in an affidavit to justify failure to appeal within the required time frame. The District Court Judge may immediately proceed to hear the appeal or adjourn it to a suitable date if the leave to appeal is granted. 


Bail Application on Appeal


A person can make a bail application immediately after a sentence in the Local Court, whether it is a severity, conviction, or all grounds appeal. A person can apply for bail the same day in the same Local Court, once an appeal has been lodged in the Local Court registry after the sentence. A person can also apply for bail in the District Court on or after the first court date in the District Court for the appeal. 


Appeals bail will most likely be granted if there is a reasonable arguable prospect of success on appeal. However, the Court must be satisfied that there is no acceptable risk to grant bail. 


Possible Outcomes of a District Court Appeal


The Local Court Magistrate’s orders can be set aside as a result of a successful appeal to the District Court. This means a person can receive an acquittal and the charge can be dismissed or a lesser penalty on the sentence. 


A Judge can decide if a higher penalty has to be imposed than the penalty imposed by the Local Court. The Judge has to warn the applicant about the higher penalty to allow the applicant to withdraw the appeal. On withdrawal, the sentence of the Local Court will stand. 


A District Court Judge can rule in favour of the following possible outcomes in a conviction appeal when a person appeals to the finding of guilt. The Judge can:


·        Set aside the guilty verdict and conviction and acquit the person and dismiss the charge

·        Reserve the finding of guilt and conviction and remit the case back to the Local Court

·        Dismiss the appeal of the conviction

The District Court Judge can rule in favour of the following possible outcomes in a severity appeal. The Judge can:

·        Set aside the original sentence of the Local Court and impose a lenient sentence

·        Set aside the original sentence and impose a heavier sentence – the Judge will give a warning to allow withdrawing the appeal

·        Dismiss the severity appeal


Appeals for District Court to Supreme Court


The Supreme Court has two separate divisions, the Court of Criminal Appeal and the Court of Appeal. The highest Court for criminal cases in NSW is the Supreme Court of Criminal Appeal. The Court of Criminal Appeal hears appeals from the District Court or the Supreme Court. 


Three types of appeals in the Court of Criminal Appeals (CCA)


·        Conviction appeal – the guilty verdict by the Jury or the Judge is appealed

·        Severity appeal – the severity of the sentence is appealed

·        All grounds appeal – the guilty verdict and the severity of the sentence are appealed


A person has the right to appeal to the CCA if the grounds for the appeal rely only on the error of law. The CCA court will have to grant leave to make a conviction appeal if the appeal is on the grounds of questions of fact or a mixture of law and facts. If a person appeals to a sentence imposed by a District Court Judge, the person will need the CCA Court’s leave to appeal. Leave will only be granted if the Court finds the necessary ground for appeal. 


The Criminal Court of Appeal can allow the applicant to introduce fresh evidence if it was always available in the original Court but not used. 


Grounds of Appeal


Grounds of appeal for a conviction appeal include:


·        Miscarriage of justice from legal representation

·        Error when allowing or excluding evidence in a trial

·        Fresh evidence

·        The convictions are unreasonable and not supported by the evidence presented in the case

·        Inconsistent verdict

·        The Judge’s summary misdirected the jury

·        Procedural unfairness


Grounds of appeal for a severity appeal include:


·        The original sentence was manifestly excessive

·        The sentencing Judge made a specific error, such as factual mistakes, or the Judge failed to take material considerations into account

·        Fresh evidence


The Time Limit and Process to Lodge a District Court Appeal


An applicant has 28 days from the day of conviction or sentence to lodge a Notice of Intention to Appeal or a Notice of Intention to apply for Leave of Appeal. This timeframe can be extended if the Court considers it in the interest of justice. 


The Notice of Intention to Appeal will be valid for six months before it expires. The applicant has to file the following if they want to continue with the appeal in these six months:


·        Notice of Appeal

·        Grounds of Appeal

·        Written submissions in support of the appeal

·        A certificate to prove the transcripts of remarks, summaries, and transcripts of the trial or sentence is available

·        A statement listing the lawyers who will appeal on the applicant’s behalf


If the Notice of Appeal is not filed within 28 days, then the formal notice of appeal and the above-listed documents must be filed within three months from the date of conviction or sentence. Before filing an appeal you should obtain legal advice from a criminal defence lawyer.  


Possible Outcomes of a CCA Appeal


The following outcomes are possible for conviction appeals in the CCA Court:


  • The CCA court can overturn the conviction and acquit the accused person
  • The CCA court can remit a case back to the original Court for a retrial if an error occurred in the original Court
  • The Judge can dismiss the appeal if no error was found in the original Court
  • The Judge can dismiss the appeal if there were no miscarriage of justice found, even though an error occurred in the original Court

The following outcomes are possible with a Supreme Court of Criminal Appeal for severity appeals:


·        The CCA court can determine whether a lesser or harsher sentence is appropriate

  • The CCA court can remit a case back to the original Court with certain recommendations to rectify if an error occurred in the original Court

·        The Judge can dismiss the appeal if no error was found in the original Court

·        The Judge can dismiss the appeal if there were no miscarriage of justice found even though an error occurred in the original Court


Appeals to the High Court


Appeals against decisions of the NSW Court of Criminal Appeal are made to the High Court of Australia. The matter has to be in the public’s interest or of general importance. A person does not have an automatic right to appeal to be heard by the High Court. The applicant has to obtain the High Court’s leave to appeal. The application has to be submitted in writing with supporting documentation and evidence. 


The applicant has to persuade the High Court that special reasons for an appeal exist during a preliminary hearing. Most applications for special leave are refused and the High Court will only hear an appeal if special leave is granted. The decisions of the High Court on appeals are final and there are no further avenues of appeal after a High Court decision.


It is advisable to obtain merit advice from an experienced appellate lawyer. The lawyer will assess the case and the evidence to determine if there are any grounds for appeal in the case. Contact Lyons Law Group if you need an experienced lawyer to assist with an appeal. 

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  • Mohammad Khan | Criminal Defence Lawyer

    Mohammad Khan is the Principal Solicitor of Lyons Law Group. After graduating with a Bachelor of Aviation from the University of New South Wales, Mohammad took a keen interest in the law. He began training in criminal law under the tutelage of Australia’s leading criminal lawyer Adam Houda and studied law at the University of Sydney.