If you have been found guilty and you think you should not have been, or you have had a sentence imposed that you feel is too severe, we can help give you the right advice to see if you might have grounds to appeal to decision.
Apart from appeals from the Local Court to the District Court, a right of appeal only arises if there was an error in law. However, the most common forms of appeal are from the Local Court to the District Court so we will focus on that. Commonly, there are two types of appeals against a decision handed down by a Local Court Magistrate:
- Conviction appeals; and
- Severity (sentence) appeals.
An appeal against a decision by a Local Court Magistrate to find you guilty of an offence is known as a conviction appeal. The appeal hearing is heard before a District Court Judge and is usually conducted by way of rehearing the evidence that was given in the Local Court hearing. In other words, no new evidence can be given in the appeal hearing unless you are given leave by the District Court Judge, which will only be given if the Judge determines that it is in the interests of justice for the fresh evidence to be put before the Court.
An appeal against the sentence imposed by a Local Court Magistrate is known as a severity appeal. The appeal hearing is heard before a District Court Judge and is heard “de novo”. In other words, the District Court Judge considers all the material and hears the submissions as if it is being put to the Court for the first time. Also, you are entitled to put before the Court material that was not previously put before the Local Court Magistrate. In fact, in severity appeals, it is common for the appellant to tender further material (psychiatric reports, references etc.), call oral evidence or seek updated pre-sentence reports.
Both types of appeals to the District Court have strict time limits. A defendant’s appeal must be lodged within 28 days of the sentence being imposed. If you wish to lodge a conviction appeal, you first must wait until sentencing is complete before being able to lodge the notice of appeal.
If you miss this timeframe, you may still lodge an appeal within 3 months from the date of sentence, however, you will need to seek the leave of the District Court for the leave to be heard. The application for the leave of the Court would then be heard at the beginning of the appeal hearing. If your application for leave is successful, the hearing will usually ensue immediately, however, if you are unsuccessful, your appeal will not be heard. Because of this added hurdle, it is very important that you lodge your appeal within the 28 day timeframe.
If you are outside of the 3-month time limit, you cannot lodge an appeal under any circumstances.
Other types of appeals our criminal defence team can help you with include:
- Appeals against bail refusal
- Appeals against refusal of annulment application
- Appeals in AVO matters