Appeals
If you wish to contest the outcome of your criminal law matter, whether it be for a wrongful conviction or an excessive sentence, you may wish to file an appeal.
An appeal involves an application to overturn or change the decision made by a court or tribunal. The aim of an appeal is to correct mistake/s that were made by lower courts, ensure that trials are fair and that the law is applied consistently.
At Criminal Lawyers – Defending You, our team of experienced criminal defence lawyers will provide you with honest and realistic advice on your appeal prospects relevant to your conviction and/or sentence and assist you with the appeal process. Our appeal lawyers will prioritise and prepare your appeal to deliver a well thought-out, strategic, and strong arguments for your appeal to achieve the best possible outcome.
Below is information about the appeals process. If you need advice from an experienced appeals lawyer, make an enquiry on our website or call us today on (02) 9060 9799.
Appeals
Severity Appeals
Appeals against an excessively harsh sentence.
All Grounds Appeals
Appeals against both your sentence and conviction.
Driver Licence Appeals
Appeal against suspension or demerit points.
Failing to Appear In Court
How to overturn a conviction or sentence that was decided in your absence.
Conviction Appeals
Appeals against a wrongful or unfair determination that you are 'guilty'.
Crown Appeals
Appeals against the leniency of your sentence brought by the Director of Public Prosecutions (DPP).
Bail Application On Appeal
Applying for Bail after you have been convicted, sentenced, and have lodged an appeal.
FAQ's
Frequently Asked Questions about Appeals.
Severity Appeals
Appeals against an excessively harsh sentence.
Section 5(1)(c) of the Criminal Appeal Act 1912 (NSW) provides that a person convicted on indictment may appeal against the sentence imposed on the person’s conviction, with the leave of the court.
If you believe your imposed sentence was too severe, you may appeal the decision to a higher court.
Severity Appeals Process
1. 28 days to lodge a Notice of Intention to Appeal (NIA)
Section 10(1)(a) of the Criminal Appeal Act 1912 (NSW) provides that a Notice of Intention to Appeal (NIA) must be given within 28 days from the date of the sentence.
If you fail to lodge a Notice of Intention to Appeal within the 28-day timeframe, Regulation 3B(1)(b) of the Criminal Appeal Rules stipulates that a Notice of Appeal or a Notice of Application for Leave to Appeal may be given within three months after the sentence. These three months can also be extended further by the court as per Regulation 3B(2).
If your Notice of Intention to Appeal is granted, you must file for a Notice of Appeal to commence proceedings. If you do not file for a Notice of Appeal, or you decide to withdraw your appeal, the Notice of Intention to Appeal will expire.
2. 6 months to lodge a Notice of Appeal
After your Notice of Intention to Appeal has been granted, you have 6 months to file a Notice of Appeal. Our team of experienced criminal lawyers can assist you with preparing this.
This will include the grounds on which you are appealing and any written submissions to support these grounds that you wish to make regarding the matter.
Section 17 of the Crimes (Appeal and Review) Act (2001) demonstrates that you will be able to introduce new evidence to the court for a severity appeal. The court will make its own findings, rather than indicating there was
a miscarriage of justice, or any other form of legal, factual, or procedural
mistake.
Once a Notice of Appeal has been filed, your application will be listed in the court you are appealing to. The court registrar will notify you and the Director of Public Prosecutions (DPP) regarding when and where your appeal will be heard.
3. Appeal Hearing in Court
The hearing will be held in the District Court in an appeal from the Local Court. The hearing will be held in the New South Wales Court of Criminal Appeal (NSWCCA) in an appeal from the District Court.
During the hearing, the judge will examine and review the provided transcripts, submissions, documents, and evidence (provided either by yourself or by someone called to give evidence about you).
Documents to support your appeal may include (but aren’t limited to):
* Medical certificates
* rehabilitation centre reports
* counsellor reports
* psychological or psychiatric reports
* character references (this can be found on the Legal Aid NSW website at https://publications.legalaid.nsw.gov.au/PublicationsResourcesService/PublicationImprints/Files/214.pdf )
Our team can ensure that the evidence you intend to provide is reliable, genuine, and beneficial for your appeal. We can also provide copies of these documents to the DPP beforehand, to confirm they can be given to the judge in court.
The court will then ‘reserve’ its judgement; this process can take weeks or months. The court will give 1-2 days’ notice before delivering the judgment. Our lawyers will promptly contact you to explain the result.
4. If successful - sentence appeal allowed and offender is resentenced
If you are successful in your appeal, the judge may set aside the original sentence and impose a more lenient sentence.
5. If unsuccessful - sentence appeal dismissed
If you are unsuccessful in your appeal, the judge may impose a heavier sentence. However, as per the principles set out in Parker v DPP (1992) 28 NSWLR 282, the judge is required to indicate to you if they are contemplating inflicting a harsher penalty. This is called a ‘Parker Warning’. This means that you can consider applying for leave to withdraw your appeal and maintain the original sentence which was imposed.
Experienced criminal lawyers will always recognise when a judge is giving a Parker Warning and will immediately ask whether you wish to withdraw your appeal.
A judge can also dismiss the appeal altogether, whereby your initial sentence in the original court will take effect.
Conviction Appeals
Appeals against a wrongful or unfair determination that you are 'guilty'.
Section 10(1)(a) Criminal Appeal Act 1912 (NSW) provides that a Notice of Intention to Appeal (NIA) must be given within 28 days from the date of the conviction.
If you fail to lodge a Notice of Intention to Appeal within the 28-day timeframe, Regulation 3B(1)(b) Criminal Appeal Rules stipulates that a Notice of Appeal, or a Notice of Application for Leave to Appeal may be given within three months after the conviction. This three month period can also be extended further by the court as per Regulation 3B(2).
If your Notice of Intention to Appeal is granted, you must file for a Notice of Appeal to commence proceedings. If you do not file for a Notice of Appeal, or you decide to withdraw your appeal, the Notice of Intention to Appeal will expire.
Conviction Appeals Process
1. Lodging a Notice of Intention to Appeal within 28 days
Section 10(1)(a) Criminal Appeal Act 1912 (NSW) provides that a Notice of Intention to Appeal (NIA) must be given within 28 days from the date of the conviction.
If you fail to lodge a Notice of Intention to Appeal within the 28-day timeframe, Regulation 3B(1)(b) of the Criminal Appeal Rules stipulates that a Notice of Appeal or a Notice of Application for Leave to Appeal may be given within three months after the conviction. These three months can also be extended further by the court as per Regulation 3B(2).
If your Notice of Intention to Appeal is granted, you must file for a Notice of Appeal to commence proceedings. If you do not file for a Notice of Appeal, or you decide to withdraw your appeal, the Notice of Intention to Appeal will expire.
2. Lodging a Notice of Appeal within 6 months
After your Notice of Intention to Appeal has been granted, you have 6 months to file a Notice of Appeal. Our experienced criminal lawyers can assist you with preparing this.
This will include the grounds on which you are appealing and any written submissions to support these grounds that you wish to make regarding the matter.
For a case to be on appeal in the New South Wales Court of Criminal Appeal (NSWCCA), you must be mindful that there are limited circumstances that act as sufficient grounds for conviction appeals. These include:
where the District Court Judge ‘misdirected’ the jury about an aspect or rule of the law;
where the Judge ‘admitted evidence’ that should have been excluded;
where the Judge refused to admit evidence that should have been admitted
where the Jury reached a verdict that was not supported by the evidence; or
where the incompetence of your legal representative(s) caused a miscarriage of justice.
For a conviction appeal, you cannot introduce new evidence on appeal unless the Judge grants leave, as set out in section 18 of the Crimes (Appeal and Review) Act 2001 (NSW).
Once a Notice of Appeal has been filed, the matter will be listed for a ‘Mention’ (a short period in court) where a transcript will be ordered and prepared. A transcript includes the oral evidence given by witnesses during the initial court proceedings, as well as the previous court’s judgment. This can take up to eight weeks to prepare. Once the transcript is finalised, the appeal will be listed for a hearing before a judge in the court you are appealing to.
The court registrar will notify you and the Director of Public Prosecutions (DPP)
regarding when and where your appeal will be heard.
3. Appeal Hearing in Court
The hearing will be held in the District Court in an appeal from the Local Court. The hearing will be held in the New South Wales Court of Criminal Appeal (NSWCCA) in an appeal from the District Court.
During the hearing, the judge will examine and review the provided transcripts, submissions, documents, and evidence (provided either by yourself or by someone called to give evidence about you).
If you want to provide evidence or call upon a witness to give evidence, you must file a notice of motion and an affidavit justifying why this witness was absent from your first hearing and demonstrate why they should be allowed to give evidence for your appeal. The judge must grant you leave in order to call a new witness to give evidence.
The court will also review the exhibits (including police statements, interviews, and any tangible evidence), arguments for the defence and prosecution, relevant legislation, and prior cases.
Our team can ensure that the evidence you intend to provide is reliable, genuine, and beneficial for your appeal. Our lawyers can also provide copies of these documents to the DPP beforehand, to confirm they can be given to the judge in court.
Our experienced lawyers can further assist you by making verbal submissions on your behalf to ensure your appeal is proposed most favorably for you. The court will then ‘reserve’ its judgement; this process can take weeks or months. The court will give 1-2 days' notice before delivering the judgment. Our lawyers would promptly contact you to explain the result.
4. If Your Conviction Appeal is Successful
If you are successful in your appeal, the judge may uphold the appeal, dismiss the original charges, and result in an acquittal. Alternatively, the judge may grant leave and direct the case to the original court for a re-trial.
5. If Your Conviction Appeal is Unsuccessful
If you are unsuccessful in your appeal, the judge may dismiss it, and the original conviction will take effect.
All Grounds Appeals
Appeals against both your sentence and conviction.
After lodging an all grounds appeal, the Judge can impose a more lenient sentence, despite already confirming a guilty verdict.
Instead of a conviction, under section 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a Judge can order:
the relevant charges to be dismissed (section 10(1)(a)),
to discharge the person under a conditional release order (section 10(1)(b)), or
to discharge the person on the condition that they agree to participate in an intervention program instead (section 10(1)(c)).
These are ways to avoid a criminal record despite pleading guilty to or being found guilty of a criminal offence.
Crown Appeals
Crown Appeals
Appeals by Police or the DPP
Prosecutors can appeal decisions made by the Local Court, the District Court, the Supreme Court of NSW (more specifically, the ‘NSWCCA’), and the High Court of Australia.
The decision made regarding whether to appeal a particular case is typically by the Office of the Director of Public Prosecutions (DPP).
Considerations of DPP when Deciding Whether to Appeal
In determining whether to appeal against a sentence, the DPP must first consider whether the sentencing judge made an error. Even if there is an error, the prosecution must still establish that the sentence imposed is insufficient in proportion to the facts and relevant points of law.
If there is no identifiable error, an appeal may still succeed where the sentence is so inadequate that it is likely to undermine public confidence in the administration of criminal justice in sentencing offenders.
The NSW Prosecution Guideline Chapter 10: DPP appeals, at [10.2] states that the DPP will only lodge an appeal if satisfied that:
all applicable statutory criteria is established
there is a reasonable prospect that the appeal will succeed
it is in the public interest.
Purposes of Crown Appeals
The NSW Prosecution Guideline Chapter 10: DPP appeals, at [10.4], states that the primary purpose of DPP sentence appeals is to allow the court to provide governance and guidance to sentencing courts. These appeals are, and ought to be, rare.
The Guideline states they should be brought in appropriate cases:
to enable the courts to establish and maintain adequate standards of punishment for crime
to enable idiosyncratic approaches to be corrected
to correct sentences that are so disproportionate to the seriousness of the crime as to lead to a loss of confidence in the administration of criminal justice.
The Prosecution policy of the Commonwealth: guidelines
for the making of decisions in the prosecution process (issued by the CDPP in July 2021) outlines the Director’s policy concerning Commonwealth prosecution appeals against sentence. It can be accessed from the “Prosecution Process” on the CDPP website.
Guideline 6.35 of the policy states that the prosecution’s right to appeal against a sentence “should be exercised with appropriate restraint” and “consideration is to be given as to whether there is a reasonable prospect that the appeal will be successful”.
What To Do if You Receive a Notice of Crown Appeal
Contact our team of experienced criminal lawyers who can guide you through this process.
At Criminal Lawyers – Defending You, we will carefully review your case and write a letter to the DPP requesting that the appeal be ‘abandoned’ (or cancelled) because it does not fall within Guideline 29.
Alternatively, if the DPP chooses to go ahead with the appeal, we can represent you at the appeal hearing.
If the appeal goes to court, we can utilise our extensive experience and knowledge in this field to represent your case.
Driver Licence Appeals
Appeal Against Suspension or Demerit Points
A well-prepared driver's licence appeal can result in:
your suspension overturned,
reclaiming your licence, or
no demerit points penalised.
Typically, a driver's licence appeal can only occur once. Therefore, it is imperative to consult with criminal traffic lawyers who are highly experienced in driver's licence appeals.
At Criminal Lawyers – Defending You, we have an excellent track record for driver's licence appeal cases and can assist you through the appeals process.
Driver Licence Appeals
Under what circumstances can you appeal?
You can only appeal under the following circumstances:
You are given an ‘on the spot’ police suspension for major traffic offences, such as
drink driving (mid or high range),
speeding by over 45kph,
reckless driving,
dangerous diving etc;
You are a P-plater, or L-plater and are given a demerit point suspension;
You are given a Transport for New South Wales (TfNSW) suspension for speeding by over 30kph or 45kph;
You are a full licence holder and plead ‘not guilty’ to the offence causing your demerit points suspension; or
You are a full licence holder and wish to plead ‘guilty’ to the offence causing your demerit point suspension, however, believe a licence suspension is too severe a sanction. (In these cases, your traffic lawyer can ask the court for a non-conviction order and, if successful, no demerit points will be recorded against you).
Appeals must be filed within 28 days of receiving the TfNSW notification letter or, if a letter was not received, within 28 days of becoming aware of the suspension.
Appealing against a suspension by a police officer
If you are suspended ‘on the spot’ by a police officer, you remain suspended and cannot drive until your court date even if you have filed your appeal.
Courts are unable to vary or lift your suspension unless there are exceptional circumstances that justify doing so. These can be difficult to demonstrate.
Your appeal must be filed within 28 days from when you receive your suspension from a police officer. If you fail to comply with this, the magistrate will not be able to hear your case, even if the court accepted your application.
We strongly encourage you to seek legal advice before appealing your case to best represent yourself in court.
Appealing against a TfNSW suspension
If you are suspended by TfNSW, you will receive a letter outlining your suspension.
You can lodge an appeal until the day before your suspension or cancellation commences.
Once your appeal has been lodged, you can continue to drive until your court date.
If you fail to lodge your appeal in time, even if the court accepts your application, a magistrate cannot hear your case.
Under what circumstances can you not appeal?
If you are a full licence holder and receive 13 or more demerit points, your licence will be suspended and you cannot appeal this suspension. Instead, you can apply for a good behaviour period. For more information, visit Apply for a good behaviour period on the Service NSW website.
Bail Application On Appeal
Applying for Bail after you have been convicted, sentenced, and have lodged an appeal.
Bail Application on Appeal
Section 62 of the Bail Act 2013 (NSW) outlines that a court has the power to hear a bail application if:
the court has convicted a person of an offence, and
proceedings on an appeal against their conviction or sentence are pending in another court, and
the person has not yet made their first appearance before the court in the appeal proceedings.
Failing to Appear In Court
How to overturn a conviction or sentence that was decided in your absence.
If you fail to appear in court and were convicted, sentenced, disqualified, and/or fined for a criminal or traffic offence, you must apply for an annulment application as set out in section 4(1)(a)-(b) in the Crimes (Appeal and Review) Act 2001 (NSW).
Appealing can result in being reverted to your original position whereupon you will have the option to plead guilty or not guilty to your charges.
Please contact our experienced team of lawyers if you need assistance with this process.
FAQ's for Appeals
Frequently Asked Questions
What if your 28-day period to lodge an appeal has expired?
You must first lodge a Notice of Intention to Appeal (NIA) within 28 days after the sentencing. An extension of time may be granted if it is ‘in the best interests of justice’.
An applicant will then have 6 months to file a Notice of Appeal (often prepared by your lawyer). This portfolio includes written submissions to support your grounds of appeal.
Where can you lodge a severity or conviction appeal?
You can lodge an appeal at the registry of any Local, District, or Supreme Court.
How long do you have to make an annulment application?
There is a two year time limit from the date of your conviction or sentence to make an annulment application.
Do you have another question? Contact our team of experienced criminal lawyers today to receive advice on how to achieve your best possible outcome.