An appeal is an application to a higher court to reconsider the decision of a lower court. In all appeals, except appeals from the Local Court (NSW) to the District Court you will normally need to show that there has been an error of law.
It is possible to have a conviction/penalty order that was made in your absence reversed or cancelled (annulled) in the Magistrates or Local Court.
For certain offences a Magistrates or Local Court is able to finalise your matter, record a conviction and impose a penalty if you do not attend court. There are many reasons why a person may not attend court. These include sickness, a mistake as to the date you had to attend court; or your solicitor forgot the date. If this has happened to you it may be possible to reverse the court’s decision and have your say in court. The process is called annulment.
Appeals Against Conviction
An appeal against a decision by a Local Court Magistrate that you are guilty of an offence is known as a conviction appeal or an all grounds appeal. Provided the appeal is lodged within 28 days of the finalisation of the matter in the Local Court, you have a right to appeal.
If an appeal is filed after 28 days but within 3 months a person may still appeal but needs to get the leave (permission) of the District Court to do so. A person cannot appeal a decision by a Local Court Magistrate if 3 months has elapsed since the finalisation of the matter in the Local Court
An appeal against a sentence imposed by a Magistrate is heard in the Supreme or District Court (NSW) by a Judge. The DPP appear for the Crown. Normally a solicitor or barrister would appear on your behalf.
A severity (sentence) appeal can be lodged at either:
- The Registrar of any Magistrates or Local Court; or
- The person in charge of the place where you are in custody.
Court of Criminal Appeals
The Court of Criminal Appeal (CCA) deals with appeals from the District Court and Supreme Court. For criminal matters the CCA is the highest court in the State. However, an appellant may seek leave to appeal to the High Court of Australia if they are unsuccessful in the CCA (leave to appear in the High Court is rarely granted). The CCA only deals with cases where it is said to be an error of law by rights. When issues of fact arise, leave needs to be obtained.
If you, a family member, or a loved one has been convicted of an offence following a trial before a jury or a judge sitting without a jury (District Court of NSW or Supreme Court of NSW & TAS) and you believe that there has been an injustice and the verdict is wrong, an appeal may be brought to the CCA.
If it allows an appeal against conviction, the CCA has the power to set aside the conviction from the original trial and enter a verdict of acquittal (not guilty) or order a re-trial.
The CCA has no power to make a costs order against a person who brings an unsuccessful appeal against their conviction or sentence. This means that if you lose your appeal, there is no risk that you will have to pay the prosecution’s costs of the appeal.
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