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Criminal Appeals (NSW)
When a court makes a finding of guilt against a person and imposes a sentence, these decisions may be appealed to a higher court. Appeals exist to ensure that when a party believes that a decision is unfair or that the court has made an error, they have an avenue to have the decision reconsidered. This page deals with the processes for criminal appeals in New South Wales.
Legislation
Criminal appeals in New South Wales are governed by the following legislation:
Appealing against conviction
When a court finds a person guilty of an offence, the defence may appeal against the conviction. However, when a court finds a person not guilty, there is no right to appeal for the prosecution. The acquittal is final.
When an appeal against conviction is initiated, the penalty that has been imposed is put on hold until the outcome of the appeal is known. If the defendant has been imprisoned, they may be granted appeal bail until the appeal is determined. If they have been sentenced to non-custodial orders, these orders will not come into force until the appeal has been dealt with.
Where the defence appeals against a conviction, it must demonstrate that:
- the decision was based on an error or fact or of law; or
- there was a miscarriage of justice; or
- there was a procedural irregularity.
Appeal against sentence
When a court imposes a sentence, either the defence or the prosecution may appeal against this decision. If the prosecution considers the sentencing orders to be too lenient, it may appeal, seeking harsher orders. If the defence considers the orders to be too harsh, it may appeal seeking more lenient orders. If both parties lodge appeals, the cross-appeals will be heard together.
Appeal de novo
In New South Wales, criminal defendants who are found guilty and sentenced in the Local Court or Children’s Court and want to appeal may seek an appeal de novo in the District Court. In contrast to appeals based on legal error, in an appeal de novo, the matter is looked at afresh and the appeal court may even hear new evidence.
Upon hearing an appeal de novo, the District Court may reverse the original decision and acquit the accused of the offence, or it may confirm the original decision.
Court hierarchy
A party can appeal against the decision of a magistrate to the District Court (an appeal de novo). A party may appeal against the decision of a magistrate on the basis of an error of law to the Supreme Court.
A party may appeal against a decision of the Supreme Court to the Court of Appeal. However, this may only occur with leave of the court, which is generally only given where the court considers that there has been an error of law.
If the court of appeal upholds an appeal, it may quash the conviction and acquit the defendant or it may order a retrial.
Should I appeal?
If you have been found guilty by a magistrate, particularly if you were unrepresented, it is likely to be work seeking legal advice about your appeal prospects.
If you have been found guilty in the District Court or Supreme Court, it is essential to seek legal advice if considering initiating an appeal. This is because any appeal is likely to involve complex legal argument and could incur significant costs.
Time limits
A criminal appeal must be filed within 28 days of the decision. To file an appeal after more than 28 days have passed, a party must have the court’s leave.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.