Australia: Complete guide to appeals in NSW criminal cases

You may be able to appeal your court outcome to a court of appeal in NSW if you feel that it was unfairly or wrongly decided.

Our criminal justice system gives us the option to appeal against conviction or appeal against sentence provided there are sufficient grounds of appeal. Appealing against sentence is also known as a severity appeal, but appealing against both sentence and conviction is also called an 'all grounds appeal'.

Because mistakes can and do occur in the criminal justice system, an appeal may be made to the appropriate appeal court, including the Supreme Court Sydney, Court of Criminal Appeal NSW (New South Wales Court of Appeal) or District Court appeal.

If you have lodged an appeal to the Supreme Court of New South Wales, you may view the listing on the NSW Supreme Court list, which produces a Supreme Court NSW daily list. NSW Supreme Court Judgements can be found on the Court's website.

NSW court of appeal Judges include Supreme Court Justices in NSW or NSW Supreme Court Judges, or District Court Judges.

Below is a complete guide on the law on the types of appeals available if you are not happy with the court outcome.

NSW SUPREME COURT LIST

The NSW Supreme Court list give you access to information on cases listed in the
Supreme Court of NSW, including details of time, place of court, reason it is listed in court for the day.

You can access this information via the online supreme court list or the Search Court NSW Lists App, which allows you to search for a case by its name, location, date, case number, jurisdiction, Judge or Justice name, type of listing i.e. hearing, judgement, directions.

The online list provides access to cases of up to 3 weeks ahead, and 7 days in the past. It's online list is updated every minute.

Lawyers or parties to cases can have exclusive access to case details 24/7 via the Online Registry, including details of listing date, estimated time of listing, the Presiding Judge, court room and place, and what the matter is listed for i.e. judgement, hearing or directions. To access this, you are required to register for an Online Registry account. This will then allow you to conduct online case management.

NSW Supreme Court Judgements

NSW Supreme Court decisions and judgements are published on multiple sources, including NSW Caselaw and AustLii. Some cases are difficult to find, and if unable to find it online, you may contact the Registry who can assist in locating for you. To do this, you must complete and submit an "Application for copy of reasons for judgement" form, together with a fee of $63. The form is to be submitted to the Supreme Court of NSW, GPO Box 3, Sydney, NSW 2001.

You may also enquire as to the progress of your application via email to sc.enquiries@justice.nsw.gov.au.

NSW Supreme Court Forms

NSW Supreme Court forms are required to be completed and lodged with the Supreme Court Registry if you wish to start a case, file document(s), or request admin services from the court registry.

You must use the correct form based on your purpose. Forms may also be lodged in person or electronically.

Type of forms include forms in criminal proceedings, costs assessment applications, specialist case management lists, accessing court files and application to postpone or waive fees.

NSW Supreme Court Fees

Current Supreme Court NSW filing fees depend on what it is you wish to do. The below table outlines the fees for various types of services offered by the court:

COURT OF CRIMINAL APPEAL NSW | APPEALING FROM DISTRICT COURT TO SUPREME COURT

A successful appeal to the Supreme Court of Criminal Appeal (CCA) in NSW can result in a guilty verdict being quashed causing an acquittal, or it may result in a reduction in the sentence.

The NSW Supreme Court of Criminal Appeal is the highest court in NSW for criminal cases, which hears appeals from the District Court.

There is an avenue of appealing a case from the District Court to the Court of Criminal Appeal.

You may appeal if you believe that you or a loved one has been unfairly or wrongly found guilty by a jury or judge."

You may also appeal if you believe that you or a loved one has been unfairly or wrongly sentenced by a District Court Judge.

There are 3 main types of appeals:

• Severity appeal: Where the severity of the sentence is appealed; or
• Conviction appeal: Where the guilty verdict by the Jury or Judge is appealed.
• All grounds appeal: Where you appeal both the severity of the sentence and conviction appeal.

If you're making a conviction appeal, you have a right to appeal to the CCA if the ground(s) relied on for the appeal involve error(s) of law only.

The CCA court's leave will be required to make a conviction appeal if the appeal is on the grounds of questions of fact (or a mixture of law and facts).

If you're appealing the sentence imposed by the District Court Judge, you will be required to seek the CCA Court's leave to make the appeal. Leave will be granted if there are grounds of appeal.

See below, our frequently asked questions for more information about appeals to the CCA.

What are the grounds of Appeal in the Supreme Court of Criminal Appeal?

There must be ground(s) of appeal in order to succeed in an appeal to the NSW supreme court of criminal appeal (CCA).

Grounds for a conviction appeal (appealing the guilty verdict) include:

1. Miscarriage of justice from legal representation.
   • Normally, you will be bound by the conduct of your lawyer(s). However, incompetence or carelessness by your legal representative can be grounds of an appeal on the basis that it has caused a miscarriage of justice.
2. Error in exercising discretion to allow or exclude evidence in a trial.
   • Where the original court made a mistake as to the facts, failed to consider relevant information, took into account irrelevant considerations, or acted on an incorrect principle of law when exercising a discretion as to allowing or excluding evidence in a trial.
3. Fresh evidence.
   • This is where the CCA court can conclude that a miscarriage of justice resulted in the below court from the absence of the fresh evidence at the District Court trial.
   • A conviction can be 'quashed' if the fresh evidence you wish to use on the appeal is credible, was unavailable at the trial even after taking reasonable diligence in preparing the case, and where the CCA court can conclude that if the fresh evidence was in front of the jury, the jury would be likely to entertain a reasonable doubt as to the accused' guilt or a significant possibility that the jury acting reasonably would have returned a verdict of not guilty.
4. The convictions are unreasonable and/or cannot be supported by the evidence.
   • This is where the CCA court concludes that after assessing the evidence that was available to the jury, it wasn't open to the jury to be satisfied beyond reasonable doubt that the accused is guilty.
5. Inconsistent verdicts.
   • This is where the CCA court concludes that the guilty verdict(s) by the Jury or Judge to a charge in the District Court is inconsistent (an affront to logic and common sense) with the verdict of guilty to another charge against the accused. This only applies if there is nothing that really differentiates the two charges.
6. Misdirection in the summing up by the Judge to the Jury.
7. Procedural unfairness.

Grounds for a severity appeal (appealing the severity of a sentence) include:

1. The original sentence was 'manifestly excessive'.
   • This is where a specific error cannot be shown, but the CCA can conclude that there must have been a misapplication of principle because the sentence imposed is so different from other sentences imposed in other cases that there must've been error.
2. A specific error was made by the sentencing Judge in any one or more of the following ways:
   • The sentencing Judge failed to take into account material considerations.
   • Factual mistakes: Mistakes as to the facts of the case were made by the sentencing Judge, which were material to the sentence, for example:
     • There was no evidence to support the findings of fact relied upon to impose the sentence; or
     • The evidence was all the one way; or
     • The Judge misdirected himself/herself
     • There was an error of fact that may have affected the imposed sentence.
   • Irrelevant matters were taken into account by the sentencing Judge.
   • Wrong principles of law were applied by the sentencing Judge.
3. Fresh evidence.
   • This is where the CCA allow the appeal on the basis that the fresh evidence:
     • Is of such significance that the sentencing Judge in the lower court would possibly have regarded it as having a real bearing on the sentence; and
     • The offender didn't know of it or didn't realise its significance; and
     • Where the offender's lawyer(s) didn't know about it at the time.

What is the time limit and process to appeal to the CCA?

• You have within 28-days from the day of conviction or sentence to lodge:
  1. A Notice of Intention to Appeal; or
  2. A Notice of Intention to apply for Leave to Appeal
• This 28-day period can be extended by the court if it's considered to be in the interest of justice.
• Once the Notice of Intention to Appeal is filed, it will last for 6-months before it expires. During the 6-month period, you are required to file the following if you wish to continue with the appeal:
  1. Notice of Appeal; and
  2. Grounds of appeal; and
  3. Written submissions in support; and
  4. A certificate affirming that the transcript of the remarks, summing up and transcripts of the trial or sentence are available; and
  5. A statement outlining the lawyers appearing in the appeal for you.
• The 6-month period before the Notice of Intention to Appeal expires can be extended by the court.
• If the Notice of Appeal (or Notice of Application for Leave to Appeal) is not filed within 28-days, then the formal notice of appeal with the above listed documents are required to be filed within 3-months from the date of conviction or sentence.
• If you wish to appeal to the CCA, you should first obtain a merit advice from an experienced appeals lawyer who will gather all the relevant documents for the case, including the transcripts and exhibits to formulate an assessment of the likelihood of success by outlining what if any grounds of appeal there are in the case.
• If there are no grounds of appeal found from a merit advice, then it may not be worthwhile pursuing the appeal. On the other hand, where grounds are found, it will be worthwhile pursuing it.

Can you get bail on a CCA appeal?

If appealing to the court of criminal appeal or the High Court, bail can be granted by the court if there are 'special' or 'exceptional circumstances' (Chew (1992) 66 ALJR 209).

Click here for more about Supreme Court bail applications.

What are the possible outcomes of a CCA appeal?

The Supreme Court of Criminal Appeal (CCA) can do any one of the following things on an appeal:

For severity appeals:

• For appeals regarding the severity of a sentence, once error has been identified in the original sentence, the CCA court can then determine whether a lesser sentence is appropriate, and if so, it can impose the new lesser sentence by quashing the original one under section 6(3) of the Criminal Appeal Act 1912 (NSW).
  • The CCA court is not required to re-sentence, although the CCA can impose either the same sentence or a greater sentence if it considers this to be the appropriate sentence if it finds error in the original sentence proceedings. However, if the CCA court considers the appropriate sentence to be greater than the original, it will normally inform you of this in advance to give you an opportunity to withdraw the appeal.
• For appeals regarding severity of a sentence, if an error occurred in the original court, the CCA court can remit the case back to the original court with directions on what should be done regarding the issue(s) found.
• Dismiss the appeal if no error occurred in the original court; or
• Dismiss the appeal where a miscarriage of justice is not found after being satisfied that an error occurred in the original court

For conviction appeals:

• The CCA court can quash the conviction and immediately acquit the accused person.
• If an error occurred in the original court, the CCA court can remit the case back to the original court for a retrial.
• Dismiss the appeal if no error occurred in the original court; or
• Dismiss the appeal where a miscarriage of justice is not found after being satisfied that an error occurred in the original court.

Can you use new or fresh evidence in the appeal?

The CCA court can allow you to introduce fresh evidence if it was always available in the original court but not used, in the following circumstances:

• If appealing a guilty verdict (conviction appeal) in the CCA Court, a conviction can be quashed if the CCA Court concludes that the absence of the fresh evidence in the original court resulted in a miscarriage of justice. Fresh evidence can be accepted by the CCA Court if it is credible, was not available at the trial after taking reasonable diligence in preparing for trial, and where it can be said that if it was available for the jury to consider, the jury would likely entertain a reasonable doubt as to your guilt or a significant possibility that the jury acting reasonably would return a not guilty verdict.
• If appealing the severity of the sentence in the CCA Court, the CCA Court may allow the fresh evidence if it's of enough significance that the Judge who originally imposed the sentence would have possibly regarded it as carrying a real bearing on the sentence, and if you either didn't know about it, or you didn't realise the significance of it in circumstances your lawyer(s) didn't know it existed at the time.

For instances of appealing the severity of a sentence from the District to the Supreme Court of Criminal Appeal (CCA) in NSW, you will generally not be allowed to introduce new evidence if the new evidence could have been used in the lower court you were sentenced in.

However, the CCA court can take into account any new evidence of events that have taken place after the original sentence, including evidence of the progress of rehabilitation since the original sentence, and any assistance an offender has provided to police or authorities after the original sentence. These things can reduce the original sentence on an appeal. (Betts v The Queen (2016)).

APPEALING FROM LOCAL TO DISTRICT COURT

If you believe the local court outcome was either unfair or wrong, you have the right to lodge an appeal to the District Court of NSW under section 11 Crimes (Appeals and Review) Act 2001 (NSW).

A successful appeal to the District Court can result in the local court Magistrate's orders being set aside, which means an acquittal by quashing the guilty verdict and dismissing the charge(s) or a lesser penalty on sentence, including a section 10 dismissal (non-conviction).

There are 3 kinds of District Court appeals:

1. Conviction appeal: where you appeal the local court Magistrate's decision to find you guilty.
2. Severity appeal: where you appeal the severity of the sentence imposed by the local court Magistrate.
3. All grounds appeal: where you lodge both a conviction appeal and severity appeal.

The appeal will be a rehearing of all the evidence that was already given in the local court.

An appeal to the District Court is not to determine whether the Magistrate got it wrong, instead, the whole evidence that was given in the local court will be reviewed by a fresh pair of eyes by a District Court Judge who will come to his/her own conclusion.

For more information on appeals to the District Court, see below.

What is the time limit and process of lodging a District Court appeal?

If you wish to appeal against the sentence imposed by the local court Magistrate, you have within 28-days from your sentence date to lodge a severity appeal.

If you wish to appeal against the local court Magistrate's finding of guilt, you have within 28-days from your sentence date to lodge a conviction appeal.

You will need permission from the District Court to make a conviction appeal (by applying for leave to appeal conviction within 28-days from your sentence date) if:

• You have been convicted in the local court in your absence because you failed to appear; or
• You pleaded guilty in the local court, but now wish to plead not guilty.

What happens if your 28-day period to lodge an appeal expires? If you fail to lodge an appeal within the 28-day period from date of sentence, you may still lodge an appeal within 3-months after the sentence date in which case you will need to apply for leave to appeal (sentence or conviction appeal). Here you will need to make an application for leave to appeal.

Leave to appeal will normally be granted by the District Court if it would be in the interest of justice. You will need to show compelling reasons for why you failed to lodge an appeal within the required time frame. It is recommended to prepare an affidavit to outline your explanation.

If leave to appeal is granted, the District Court Judge may immediately proceed to hear the appeal or adjourn it to a suitable date.

Appeals Bail | Can you apply for a bail application on appeal?

Whether it is a severity appeal or conviction appeal (or all grounds appeal), you can make a bail application immediately after you are sentenced in the Local Court.

After lodging an appeal in the local court registry immediately after sentence, you may then apply for appeals bail the same day in the same Local Court.

You may 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 likely be granted if there is a reasonably arguable prospect of success on the appeal. However, to grant bail, the court will also need to be satisfied that there is no unacceptable risk (and in a case it is a show cause offence, that cause has been shown that continued detention is not justified).

What are the possible outcomes of a District Court appeal?

For conviction appeals where you appeal the finding of guilt, a District Court Judge can:

1. Set aside the guilty verdict and conviction, acquit you and dismiss the charge(s); or
2. If the appeal requires leave from the District Court, a District Court Judge can set aside the finding of guilt and conviction, and remit the case back to the local court to be redetermined in accordance with the District Court's directions; or
3. Dismiss the appeal.

For severity appeals where you are appealing the severity of the sentence, a District Court Judge can:

1. Set aside the original sentence and impose a more lenient sentence; or
2. Set aside the original sentence and impose a heavier sentence. If the court intends to do this, the Judge will first give a warning to give you an opportunity to withdraw your appeal so that the sentence remains the same; or
3. Dismiss the appeal.

Can you use new or fresh evidence on a District Court appeal?

A severity appeal or conviction appeal normally involve the District Court Judge reviewing all the local court evidence in order to make his/her own conclusion. This is usually a review of all the evidence tendered and evidence given which will be reflected on an appeal in a transcript and exhibits. This is called a rehearing of the case.

If the appeal is against the severity of the sentence that was imposed, you may introduce new or fresh evidence for the Judge to take into account in your favour under section 17 Crimes (Appeal and Review) Act 2001 (NSW).

If the appeal is against a guilty verdict (conviction appeal), you cannot introduce new or fresh evidence on the appeal unless the Judge grants leave to introduce fresh evidence under section 18 Crimes (Appeal and Review) Act 2001 (NSW).

A District Court Judge will only grant leave for you to introduce fresh evidence on a conviction appeal if satisfied that it would be in the interests of justice.

It is much easier to introduce new or fresh evidence on an appeal in the District Court than an appeal in the NSW Supreme Court of Criminal Appeal (CCA).

However, in a conviction appeal, the District Court will only direct a person to attend to give evidence in the witness box if satisfied that:

1. There is substantial reasons why, in the interest of justice, the person(s) should attend to give evidence; or
2. If the offence is an offence of violence against the alleged victim, the court will only grant leave to direct the alleged victim to attend court to give evidence if there are special reasons why, in the interest of justice.

If you intend to ask the court to direct a person attend court to give evidence in the witness box, you are required to give notice of this to the prosecution first.

ANNULMENTS | IF YOU DID NOT ATTEND THE LOCAL COURT

The Local Court can sentence and convict you for certain offences in your absence where you fail to appear in court. These offences include various criminal and traffic offences, such as some drink driving offences, and drug driving offences.

If, as a result of not attending court, you've been sentenced, convicted, disqualified and/or fined for a criminal or traffic charge in your absence, you can reverse the entire sentence by making an annulment application under section 4 of the Crimes (Appeal and Review) Act 2001 (NSW).

An Annulment application is also referred to as a section 4 application.

If the annulment application is successful, the conviction and/or driver licence disqualification and penalty fine will be reversed and will no longer have effect.

As a result, you will then be placed in the initial position as you were before you failed to appear in court. You will then have the option of either pleading not guilty or pleading guilty to the charge(s)- the process will start over again.

How to make a successful annulment application?

The Local Court will only grant an annulment application to reverse your conviction and/or sentence for a criminal or traffic offence if it is satisfied that:

1. You were not aware of the court date until after the sentence or conviction was imposed by the court in your absence; or
2. You failed to attend court on the day you were sentenced or convicted due to an accident, illness, misadventure or other compelling reason; or
3. It would be in the interest of justice, in the circumstances of your case.

You will be required to give evidence to the Magistrate of the Local Court outlining any one of the above grounds of your annulment application.

The best way to give this evidence is by tendering an executed affidavit(s) to the Magistrate outlining the details of either one of the above 3 grounds for the application.

An affidavit is sworn evidence typed into a document similar to a letter outlining your main points.

By using an affidavit, you generally not be required to give your evidence in a witness box in court and your annulment application can be dealt with quickly and efficiently.

Procedure for making an annulment application?

An annulment application can only be made after you are either convicted or sentenced in the local court. You can make the annulment application by attending the same local court registry from where you were convicted or sentenced. The registry will ask you to complete a formal annulment application form.

After an annulment application is made at the local court registry, the local court registrar will then notify all relevant parties with the court date, time and location for the annulment application to be heard in court.

On the annulment application court date, the Local Court Magistrate will consider your application.

If you fail in your annulment application, the sentence will 'stay', and you will be required to comply with any conditions of it (if any were imposed). However, you may have an avenue to appeal the sentence or conviction (or both) in the District Court.

If the Magistrate grants your annulment application:

• The conviction and/or sentence will be reversed.
• If you were disqualified from driving, you will no longer be disqualified.
• If you received a criminal conviction, you will no longer have that conviction.
• If you incurred demerit points, you will no longer have that.
• If you were fined, your fine will no longer remain and any amount paid will be refunded.

On a successful annulment application:

• In the case of an annulment application regarding your sentence only, you will have an opportunity to prepare and properly present your case for a sentence again. This can result in a better outcome.
• In the case of an annulment application regarding your conviction only, you will have an opportunity to start over again by having the option of pleading guilty or not guilty to the charge(s).

It is common practice to prepare relevant documents such as affidavits to outline any compelling reasons why you failed to appear in court, causing the conviction or sentence being imposed in your absence.

An affidavit is considered sworn evidence. This makes it a strong piece of evidence which the Magistrate can admit as evidence to consider in your application without the need for you to necessarily give your evidence in the witness box.

It is important to ensure that all relevant points are outlined in the affidavit, and for the affidavit to be properly executed before handing it up to the Magistrate as evidence.

What are the time limits for making an annulment application?

You have within 2-years from the date of your sentence or conviction to make an annulment application.

To lodge this application, you may attend the local court registry where the conviction or sentence took place.

What happens to the existing sentence after the annulment application is made but before it is determined in court?

Under section 7 Crimes (Appeal and Review) Act 2001 (NSW), the local court can 'stay the execution' of the sentence concerned as it thinks fit. This means, that if the execution of the sentence is stayed, the sentence is frozen and will have no effect until the annulment application is finalised.

If you were convicted in your absence resulting in the disqualification of your driver licence which later becomes annulled by the court upon a successful annulment application, the effect of the annulment will be prospective, not retrospective. What does this mean?

• This means, that the licence disqualification that was imposed in your absence by the court, even if without your knowledge, will have legal effect during and up to the time the Local Court grants your annulment application.