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How Can You Appeal a Conviction In NSW?

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If a magistrate has found you guilty and convicted you, you have the option to appeal to the District Court. This appeal can be made against either the guilty verdict, the sentence imposed, or both the conviction and sentence.


Once you have been convicted of an offence, you are referred to as the offender. The offender has a period of 28 days to either lodge an appeal or inform the court of their intention to appeal. If the case was initially heard in the Local Court, the appeal will be heard in the District Court. However, if the trial or sentencing took place in the District or Supreme Court, the appeal will be directed to the Court of Criminal Appeal.


An appeal to the District Court will typically be scheduled before a single judge, usually within two to three weeks from the filing date, though it might take longer in regional NSW.


During a District Court appeal, the judge reconsiders the case as if it were a fresh hearing, carefully reviewing all the documents and evidence from the previous Local Court proceedings, including any transcripts if a hearing occurred.


Specifically, in a conviction appeal, the judge makes a decision based on all the evidence presented in the Local Court and by examining the transcript of the Local Court hearing. Occasionally, the defence may seek to present fresh evidence, but this is only allowed if the Judge deems it to be in the ‘interests of justice’.


Once all the evidence is considered, both the Office of the Director of Public Prosecutions (ODPP) and the defence will present their arguments regarding the guilt or innocence of the offender. Subsequently, the judge will assess whether the evidence presented is sufficient to prove the prosecution’s case.

Fresh Evidence In a Conviction Appeal

In a conviction appeal, introducing new or fresh evidence is generally not allowed unless the Judge permits it under section 18 of the Crimes (Appeal and Review) Act 2001 (NSW). The Judge will only grant permission to introduce such evidence if they believe it is necessary for the interests of justice.


Compared to an appeal in the NSW Supreme Court of Criminal Appeal (CCA), it is relatively easier to present new evidence in the District Court appeal.


However, when it comes to a conviction appeal in the District Court, the court will only require a person to testify as a witness if there are substantial reasons in the interest of justice for their attendance. Additionally, if the alleged offence involves violence against the victim, the court will allow the alleged victim to attend and testify as a witness only if there are special reasons in the interest of justice.


If you plan to request the court to direct someone to testify as a witness, you must provide prior notice of this intention to the prosecution.

Procedure for a District Court Conviction Appeal

According to Section 18 of the Crimes (Appeal & Review) Act 2001, a conviction appeal involves revaluating the evidence from the Local Court proceedings. However, Section 19 of the same act allows for the consideration of “fresh” evidence under specific conditions. Typically, the Judge will assess the appeal by reading the Local Court hearing’s transcript, examining any exhibits, and listening to submissions from both the criminal defence lawyer and the solicitor representing the DPP.


The inclusion of additional evidence is subject to court approval, and the appellant is entitled to one free copy of the Local Court hearing’s transcript. The appeal is usually scheduled for mention approximately two to three weeks after its filing. It is uncommon for the appellant’s legal representative or the DPP to possess the transcript before the initial mention. If available, the appeal may proceed to a hearing; otherwise, it will be adjourned to a later date for the hearing.

Possible Outcome to a Conviction Appeal

In a conviction appeal before the District Court, the judge will take one of the following actions:


  • Overturn the conviction, resulting in the offender’s release.
  • Reject the appeal, upholding the existing conviction.

How Many Times Can You Appeal a Conviction?

When a person is convicted in the Local Court of NSW, they have the right to appeal against that decision to the District Court. This is referred to as a “first appeal” or “conviction appeal.” The District Court conducts a review of the evidence presented in the Local Court proceedings, including documents, exhibits, and witness testimonies. The judge overseeing the appeal will make a decision as if they are hearing the case for the first time, independently evaluating the evidence and applying the law.


Second Appeal


Once the first appeal has been heard and determined, the convicted individual may seek a second appeal if they believe the sentence imposed was either too severe or too lenient. This type of appeal hearing is concerned with the punishment rather than the conviction itself. However, it is essential to note that a second appeal on the grounds of severity or leniency is not an automatic right and is subject to strict requirements.


In NSW, the Court of Criminal Appeal (CCA) handles second appeals relating to the severity or leniency of a sentence. This higher court revaluates the sentence imposed by the District Court to determine if it was appropriate and just, considering factors such as the seriousness of the offence, the offender’s criminal history, and any mitigating or aggravating circumstances.


Third Appeal – Appeals to the High Court


After exhausting the first and second appeal options, there is a possibility for a third appeal to the High Court of Australia, which is the highest court in the country. However, it is crucial to understand that the High Court will only grant leave (permission) to appeal in exceptional circumstances. To be granted leave to appeal, the case must raise a significant legal issue or question of public importance.


The High Court is not an avenue for rearguing the facts of the case or questioning the decisions made by lower courts. Its primary function is to interpret the law and ensure its consistent application across the country. Consequently, very few cases are accepted for appeal by the High Court, and most criminal matters are resolved at the state level.

Grounds for Appeal

Regardless of the number of appeals, a convicted person must have valid grounds for challenging their conviction or sentence. Some common grounds for appeal in the NSW District Court include:


Errors of Law


An appeal may be lodged if the presiding judge made an error in interpreting or applying the law during the trial.


New Evidence


If fresh evidence comes to light after the trial, which could potentially change the outcome, an appeal may be warranted. However, the introduction of new evidence is subject to specific criteria and must serve the interests of justice.


Procedural Irregularities


Any procedural errors during the trial that may have affected the fairness of the proceedings can be a basis for appeal.


Inadequate Representation


If a defendant believes their legal representation was inadequate and may have affected the outcome of the trial, they can seek an appeal.

Legal Advice

The appeal process in the NSW District Court is complex and requires a thorough understanding of the legal system. Having competent legal representation is crucial to navigate the intricacies of the process effectively. Experienced criminal defence lawyers in Sydney can assess the merits of an appeal, identify valid grounds, and present a compelling case to the court.


Appealing a conviction in the NSW District Court is a significant legal process that requires careful consideration and adherence to the rules and procedures. While an individual has the right to appeal their conviction, the number of appeals allowed is subject to strict limitations.


Understanding the grounds for appeal, the types of appeal available, and the importance of legal representation can make a considerable difference in seeking justice within the criminal justice system. As the law evolves, it is essential to stay updated on any changes that may impact the appeal process.


Seeking expert legal advice can empower individuals to make informed decisions and protect their rights during the appeal process. If you need legal advice regarding an appeal, contact our criminal lawyers in Sydney now.

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