Criminal Appeals (Qld)

When a court finds a person guilty of an offence and imposes a sentence, a party may appeal against the decision. An appeal can be lodged against a verdict, against a sentence or both. This page deals with criminal appeals in Queensland.

Who can appeal?

If a person is found guilty of a criminal offence, they may appeal against the verdict to a higher court. If a person is found not guilty of an offence, the prosecution does not have the right to appeal. An acquittal is final.

Either party may appeal against a sentence. A defence appeal against sentence is based on the argument that the sentence imposed was too harsh, while a prosecution appeal is based on the contention that the penalty was too lenient.

Appealing against conviction by a magistrate

When a person is found guilty in the Magistrates Court or Children’s Court, they may appeal against the conviction to the District Court. This appeal must be initiated within a calendar month of the original decision by filing a Form 27 – Notice of Appeal with the District Court Registry.

When considering an appeal against a magistrate’s decision, the District Court will consider the matter afresh. This is known as an appeal de novo. The District Court may consider new evidence that was not heard by the court that made the original decision. This does not occur in appeals against decisions by higher courts.

After hearing an appeal, the District Court may confirm the conviction, or reverse the decision and order that the accused be acquitted of the charge.

Appealing against conviction by a higher court

A person who is found guilty of offences on indictment in the District Court or the Supreme Court may appeal against the conviction to the Court of Appeal by filing a Form 26 – Notice of Appeal. The Court of Appeal is the highest criminal court in Queensland.

Common grounds of appeal against a conviction are:

• that the verdict is unreasonable or cannot be supported by the evidence
• that there is an error of law
• that there is an error of mixed law and fact
• that there has been a miscarriage of justice

After hearing an appeal, the Court of Appeal may:

• dismiss the appeal
• remit the matter back to the original court for retrial
• direct that there be no retrial without directing a verdict of not guilty
• quash the conviction and direct an acquittal
• substitute a verdict of guilty for a different offence
• enter a finding of insanity

Appeals against conviction after a guilty plea  

A person can appeal against a conviction after pleading guilty only where a miscarriage of justice has occurred. This may be because it was impossible for the accused to be guilty of the offence at law or because the guilty plea was induced by threats.

Appeals against sentence

When a person is sentenced for a criminal offence, either the defence or the prosecution may appeal against the sentencing orders. If both defence and prosecution initiate appeals, the cross-appeals will be heard together.

A defence appeal against sentence is also known as a severity appeal.

Appealing against sentence by a magistrate

If a person was sentenced by a magistrate, they may appeal against the sentence to the District Court within a calendar month of the date of sentence. The District Court will consider the matter afresh and may hear new evidence. This is an appeal de novo and does not require the appellant to articulate specific grounds of appeal.

The District Court may:

• confirm the sentence
• replace the magistrate’s decision with a different sentence
• order that the matter be remitted back to the original decision-maker for reconsideration.

Appealing against sentence by a higher court

If a person is sentenced by the District Court or by the Supreme Court, they may appeal against the sentence to the Court of Appeal. This requires the party to file an application for leave to appeal, setting out the appeal grounds. If the Court of Appeal grants leave to appeal, it may confirm the original decision or overturn the decision and substitute a new sentence.

Appeal bail

When a person appeals against a sentence, the sentencing orders are put on hold until the appeal has been determined. If the person has been sentenced to a term of imprisonment, they may apply for appeal bail.

If appeal bail is granted, the appellant will be released on bail until the appeal has been determined. If appeal bail is refused, the appellant will remain in custody on remand until the appeal has been determined.    

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