What is a criminal appeal?8 December 2021 in Criminal Law
In simple terms, an appeal is an application made to have a legal decision reconsidered by a higher court than the court that made the original decision.
In NSW, if you have received a conviction and sentence for a criminal offence in the local court you have the right to seek an appeal in the District Court. You can seek an appeal of your conviction or your sentence or both.
The availability of these appeals is restricted by certain time limits.
A conviction appeal is an appeal against being found guilty of an offence by the Local Court.
Seeking a conviction appeal is appropriate if you believe that you should not have been found guilty of an offence by the Local Court. Seeking a conviction appeal will result in the District Court rehearing your case and making its own determination of whether you should be found guilty of an offence.
If you want to rely on new evidence in your appeal, you will need the District Court’s permission to do so. For the District Court to allow new evidence to be assessed in a conviction appeal, it must be satisfied that it is “in the interests of justice” that the new evidence is used. The District Court judge upon rehearing your case may confirm or set aside your conviction.
It is important to remember when seeking a conviction appeal, you must lodge a notice of the appeal within 28 days following your conviction. Alternatively, you may also seek the court’s permission to have a conviction appeal for up to three months following your conviction.
A severity appeal is an appeal against the sentence imposed for an offence by the Local Court.
Seeking a severity appeal is appropriate where you believe that the sentence imposed by the Local Court is too severe. In the severity appeal the District Court will rehear the evidence given in the original hearing and consider whether your sentence was impacted by an error of the sentencing judge’s discretion. In a sentencing appeal new evidence can be given for the court to consider. Upon rehearing of the evidence, the District Court will either dismiss the appeal, set aside the sentence or vary the sentence.
If a judge is considering a more severe penalty during your appeal, the judge will be required to notify you of this. Following this notification, you may want to consider whether you want to withdraw your severity appeal.
It is important to remember when seeking a severity appeal, you must lodge a notice of the appeal within 28 days following your conviction. Alternatively, you may also seek the court’s permission to have a severity appeal for up to three months following your conviction.
Why BSM lawyers
The criminal defence lawyers at Brander Smith McKnight are committed to assisting you in appealing court decisions that you are unsatisfied with.
Our criminal defence lawyers are experienced with the criminal appeal process and can provide you with an expert understanding of all aspects of this process.
Our team has experience in all courts including the Local Court, District Court, Children’s Court, Supreme Court and the Criminal Court of Appeal.
Can I appeal to the Supreme Court from the Local Court?
Yes, but only in very particular circumstances. Seeking an appeal of a sentence or conviction in the Supreme Court requires that you have a question of law or fact (or a mixed question of law and fact) to be decided by this court.
A question of law occurs where the law may not have been applied or interpreted correctly by a judge.
A question of fact occurs where an issue arising from the facts of a case requires resolution by the court.
A mixed question of fact and law occurs where there are combination of issues of facts and law in a case that require resolution by a court.
Can the court extend the time limits to make appeals?
When seeking a conviction or severity appeal, you must lodge a notice of the appeal within 28 days following your conviction. Alternatively, you may also seek the court’s permission to have a severity appeal for up to three months following your conviction – the court may extend this three month period of time.