If you have been found guilty in the Local or District Court and believe that you are not, you may have the ability to appeal the decision. If you have been sentenced and believe that the sentence is too severe, you may be able to appeal the severity of the sentence at a higher court.
Appeals from Local Court decisions are heard in the District Court before a District Court judge. There are two main types of appeals to the District Court:
Severity Appeals - an appeal against the severity of the sentence imposed on you in the Local Court; and
Conviction Appeals - an appeal of a finding of the Local Court that you are guilty of an offence after a defended hearing. Conviction appeals can also include a severity appeal.
You can also appeal to the District Court when:
an AVO has been made against you and you do not think it is required;
you were disqualified from driving by the magistrate and you think the disqualification period is too long or should not have been made at all; and
the magistrate refused to annul a conviction or other order that was made by the court in your absence.
An appeal to the District Court needs to be lodged within 28 days of the decision of the Local Court magistrate. This means 28 calendar days - not 28 working days.
If you lodge the appeal in this time period, it usually means that any penalty the court imposed is stayed - that is, put on hold - until the appeal is heard in the District Court. If you were sentenced to a term of imprisonment in the Local Court, you can apply for bail and if it is granted, your sentence is stayed. If you do not get bail, your sentence will continue to run.
It’s possible to lodge an appeal after the 28 days but before 3 months has lapsed since the magistrate’s decision. An appeal lodged during this time requires that leave be sought. This means that when the appeal is lodged, the court will provide you with a form asking that you explain why you did not lodge the appeal in the 28 day period.
It’s not possible to lodge an appeal to the District Court after the 3 month period of time.
An appeal can be lodged at any Local Court - it doesn’t have to be the court that your matter was heard at.
At the appeal, the police are represented in court by a solicitor from the DPP.
At a conviction appeal, the judge will look at all of the material that was tendered as an exhibit in the Local Court. The judge will also read the transcript of the Local Court hearing. After this, submissions are usually made by the DPP solicitor and the defence. the judge then makes a decision after hearing these submissions.
Usually this means the court will not hear or look at any new evidence. If you want to rely on new evidence or a new witness, leave has to be sought and you need to convince the court why the evidence should be called and why it was that the witness was not called in the Local Court.
At the sentence appeal, the judge will look at the Local Court papers including the statement of facts and any reports or other documents tendered in the Local Court. The judge will hear submissions from the DPP solicitor and from the defence. At a severity appeal, you are able to give evidence and hand up documents that might not have been before the Local Court.
The judge will make a decision after looking at all of the material and hearing submissions.
In a severity appeal, it is possible that a judge might think that the sentence that was imposed in the Local Court was not sever enough - that the judge decides that he or she should impose a penalty on you which is more severe than before. If the judge thinks this though, he or she must give you a warning before hand. this gives you the opportunity to withdraw your appeal and the sentence of the Local Court will stand.
If you are successful in your appeal, the judge can order:
that the conviction be set aside;
that the penalty imposed by the Local Court be set aside and a less severe penalty be imposed; or
in a conviction appeal, that you are not guilty.
The NSW Court of Criminal Appeal (the CCA) hears appeals in regards to errors of law in criminal matters. An appeal to the CCA is commenced by lodging a Notice of Intention to Appeal which must be done within 28 days of the decision in the District Court. Recognising that appeals to the CCA usually involve matters where long gaol sentences have been imposed, there is some flexibility in filing a Notice of Intention. If the 28 days has lapsed, the Court requires that a Notice of Application for Extension of Time for Notice of Intention to Appeal to be lodged.
After the Notice of Intention is filed, the party appealing has 6 months to file a Notice of Appeal which sets out the errors of law said to have occurred in the lower court.
If you are considering an appeal of a court’s decision it’s really important to get legal advice early so that there is enough time to lodge an appeal. It’s also important to get that early advice so that you know what your prospects of success are. The team at Kingston Fox Lawyers are experienced criminal lawyers and are well versed in appeals across jurisdictions - from Local Court matters all the way to the High Court of Australia. We also have a trusted network of barristers to form the best team for you.
Contact Kingston Fox Lawyers to discuss your matter.