When a court makes a decision in a criminal matter, the defendant has the right to appeal that decision to a higher court. A defendant may appeal against a verdict, against a sentence, or against both. This page provides general information about criminal appeals in Australia. It is important to note that individual appeal procedures vary between different states and territories.
Who can appeal?
A defendant can appeal against a verdict that a court has handed down after a jury trial or contested hearing. A defendant can also appeal against a sentence that has been imposed by a court.
The prosecution can appeal against a sentence that was imposed by a court if it considers the sentence was too lenient. The prosecution cannot appeal against a verdict.
Process for making criminal appeals
A party who wants to appeal a court decision in a criminal matter needs to file a Notice of Appeal within the appeal period. There are different Notice of Appeal forms for different courts, and these can be found on the court websites of each state and territory.
A Notice of Appeal must contain all the details of the decision being appealed and must set out the grounds of appeal. The grounds of appeal are the reasons that the appellant (the person appealing) says that the decision should be overturned.
Common appeal grounds
Examples of common appeal grounds are:
- That the sentence imposed was excessive;
- That evidence was improperly admitted;
- That evidence was improperly excluded;
- That there was insufficient evidence to support a finding of guilt;
- That there was prosecutorial misconduct.
Once the Notice of Appeal has been filed and served on the other party, the court will provide the parties with a date when the appeal will be heard. On this date, both parties will make submissions and the court will decide whether any of the grounds of appeal have been made out.
Time limit for criminal appeals
Time limits for filing criminal appeals vary between jurisdictions. In some states, an appeal must be filed within 28 days of the decision that is being appealed. In other states, it must be filed within one calendar month of the decision (excluding the date of the decision).
If a party wants to appeal after the appeal period has passed, they may apply for an extension of time. This application must be made in writing and accompanied by an affidavit setting out the circumstances.
The court may grant an extension of time if it considers there were substantial reasons why the Notice of Appeal could not be filed on time.
Which court do I appeal to?
A court’s decision may only be reviewed by a higher court.
Decisions by magistrates are appealed to a single judge of the Supreme Court or to a single judge of the District Court (depending on the state or territory).
Decisions by the District Court or Supreme Court may be appealed to the Court of Appeal, which is a division of the Supreme Court presided over by a panel of three or five judges.
Court of Appeal decisions can be appealed to the High Court of Australia. High Court decisions are final.
Appeals de novo
An appeal de novo is an appeal where all the issues that were considered by the court that made the original decision, are considered again by a higher court. An appeal de novo is not based on a claim that the original decision-maker made an error of law. It is simply a completely fresh hearing and is decided without reference to the original decision.
De novo criminal appeals do not exist in all states and territories of Australia. In the Northern Territory, a criminal decision by a magistrate can be appealed on the basis of an error of law to a single judge of the Supreme Court, but there is no right to an appeal de novo. In Victoria, de novo appeals were abolished in 2020. Prior to that time, de novo appeals against decisions by magistrates could be made to the County Court.
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