Unhappy with the Verdict? Guide to the Criminal Appeal Process in Australia

Key Takeaways

• Two Main Appeal Types: You can appeal either your conviction (the guilty verdict itself) or the severity of your sentence.

• Strict Time Limits Apply: You generally have only 28 days from the date of the court's decision to lodge a Notice of Appeal. Acting quickly is critical.

• Appeals Are Not a Re-trial: An appeal is not a second chance to run your case from scratch. You must be able to convince a higher court that the original magistrate or judge made a specific error of law, fact, or procedure.

• Specialist Legal Representation is Essential: The appeal process is one of the most technical and complex areas of law. Success is impossible without an experienced criminal lawyer and often a specialist barrister.

Introduction

A guilty verdict or a harsh sentence from a court can feel like a devastating and final end to a long and stressful legal battle. However, the Australian justice system has a vital, built-in safeguard against potential miscarriages of justice: the right to an appeal.

The appeal process is not a simple "second chance." It is a formal legal procedure for a higher court to review a decision made by a lower court. Understanding how this process works, the strict time limits, and the grounds on which you can appeal is crucial if you believe the original outcome of your case was wrong.

This guide explains the criminal appeal process in Australia, what you can appeal, and the steps you must take.

Important Note: The rules and procedures for appeals are governed by the legislation of each state and territory. This article uses the court hierarchy and laws in New South Wales (NSW), such as the Crimes (Appeal and Review) Act 2001, as a guiding example.

Learn more about the Crimes (Appeal and Review) Act 2001 at New South Wales Legislation.

An appeal is not a vague expression of dissatisfaction. It must be directed at a specific legal outcome. There are two main types of appeals:

1. Appealing a Conviction

This is an argument that the guilty verdict itself was wrong. You are not just re-arguing the facts; you are asserting that the court made a fundamental error that led to an unjust conviction.

2. Appealing a Sentence

This is an argument that, while the guilty verdict may have been correct, the penalty imposed by the magistrate or judge was too severe. The legal term for this is that the sentence was "manifestly excessive."

Where you appeal depends on which court made the original decision.

Appeal from the Local Court to the District Court

This is the most common type of appeal in NSW. If you were sentenced in the Local Court, you have an "appeal as of right" to the District Court.

• What it means: This appeal involves a complete re-hearing of the evidence from your original hearing. Witnesses may be called again, and your lawyer presents your case anew. The District Court judge is not bound by the Magistrate's original decision and will make their own finding. This is your best opportunity for a fresh look at your case.

Appeal from the District or Supreme Court to the Court of Criminal Appeal (CCA)

This is a much more difficult and legally technical appeal. If you were convicted or sentenced after a trial in the District or Supreme Court, your appeal is heard by the state's highest criminal court, the Court of Criminal Appeal (CCA).

• This is not a re-hearing. The CCA will not hear from witnesses again. Its role is to review the transcript and evidence from the original trial to determine if the trial judge made a specific error.

• You must first get "leave" (permission) from the court to bring your appeal.

You cannot appeal a decision just because you are unhappy with it. You must be able to point to a specific error made by the court in the original proceedings. The main grounds for appeal are:

• An Error of Law: The magistrate or judge incorrectly interpreted or applied the law.

• An Error of Fact: The verdict was unreasonable or could not be supported by the evidence presented.

• A Miscarriage of Justice: A procedural error or unfairness occurred during the trial that denied you a fair hearing.

This is the most critical procedural rule. In NSW, you generally have 28 days from the date of your sentence or conviction to lodge a formal Notice of Appeal with the court.

If you miss this deadline, you will lose your right to appeal. While it is sometimes possible to apply for an extension ("leave to appeal out of time"), this is very difficult to get and is not guaranteed.

• Get Urgent Legal Advice: This is the absolute first step. An expert criminal lawyer can review your case, advise you on your prospects of success, and identify any potential grounds for appeal.

• File a Notice of Appeal: Your lawyer will draft and file the formal Notice of Appeal with the correct court registry. This document officially starts the appeal process and must be filed within the 28-day time limit.

• Prepare Submissions and Evidence: For the appeal hearing, your legal team (often including a specialist barrister) will prepare detailed written submissions outlining the legal arguments and referencing the evidence from the original trial.

• The Appeal Hearing: At the hearing, your lawyer/barrister will present these arguments to the appeal judge(s). The prosecution will respond, and the judge(s) will then make a decision.

The appeal process is a vital safeguard in the Australian justice system, ensuring that errors can be corrected and miscarriages of justice can be prevented. However, it is a complex, technical, and time-sensitive legal procedure that should never be undertaken lightly.

It is not a simple second chance to re-run your case. Success depends on identifying a specific legal or factual error in the original proceedings. If you are considering an appeal against a conviction or sentence, you must speak with an expert criminal lawyer immediately, well before the critical 28-day deadline expires.

Disclaimer: This article provides general information and is not legal advice. The law surrounding criminal appeals is highly technical and complex. If you are considering an appeal, you must seek immediate advice from a qualified criminal lawyer who specialises in appellate law.

AHL Legal: Your Partner in Navigating the Criminal Appeal Process

Unhappy with a court verdict or sentence? At AHL Legal, we provide expert legal advice to help you navigate the complex appeal process and fight for justice.