Criminal Appeals (ACT)

When a court makes a decision in a criminal matter, this decision may be appealed to a higher court by either the defence or the prosecution. Appeals are an essential part of the criminal justice system and provide parties with a way of challenging decisions they believe to be unfair or unlawful. This page deals with criminal appeals in the ACT.

Appealing a verdict

A defendant may appeal against a guilty verdict if they still maintain that they are not guilty after the decision is handed down. When an appeal against a guilty verdict is filed, it means that a higher court is being asked to reconsider the evidence and assess whether it was open to the original court to find the defendant guilty beyond a reasonable doubt.

When an appeal is lodged against a verdict, any penalty that was imposed is put on hold until the appeal has been decided. If the defendant was sentenced to imprisonment, they may be granted appeal bail until the appeal has been decided. If they were sentenced to a non-custodial penalty, such as a fine, they will not be required to comply with the order until the appeal has been decided.  

An appeal against a verdict will be successful if the court is persuaded that:

• the decision was made based on a legal or factual error; or
• there was a miscarriage of justice; or
• there was a procedural irregularity.

It is important to note that the prosecution cannot appeal against a verdict. If a person is found not guilty, that decision is final.

Appealing a sentence

Either the defence or the prosecution may appeal against a sentence.  The defence may appeal against a sentence on the basis it was too harsh and seek a more lenient sentence. The prosecution may appeal on the basis that the sentence was too lenient and seek a harsher sentence. It is possible for both defence and prosecution to appeal against a decision. When this occurs the cross-appeals will be heard together.

When the defence appeals against a sentence on the basis it was too severe, this is known as a severity appeal. This appeal will succeed only if the defence establishes that there was a legal or factual error made during the sentencing process or in the final penalty imposed. For example, an appeal against sentence may succeed if the appeal court finds that the sentencing court failed to take into account extenuating circumstances, or that it failed to consider the defendant’s prior history of offending.  

Court hierarchy

If a person appeals against a decision of the Magistrates Court or Children’s Court, the appeal is made to the ACT Supreme Court.

If a party appeals against a decision of the Supreme Court, the appeal is made to the Court of Appeal. However, the Court of Appeal will generally only agree to hear an appeal if satisfied that an error of law has been made.  

A decision of the Court of Appeal may be appealed to the High Court of Australia. This will only occur if the High Court grants special leave to appeal.  

Time limit

An appeal in a criminal matter must be initiated within 28 days of the date the decision is made. If a party wants to initiate an appeal after more than 28 days have passed, they need permission from the court and will be required to explain the delay in filing the appeal.  

Other jurisdictions

While all Australian jurisdictions have recourse to criminal appeal processes, the precise processes differ between different states and territories. If you are unsure about your right to appeal, or which court to appeal to, seek legal advice as soon as possible.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.