APPEALS

In NSW and Australia, we have a hierarchy of Courts who have different powers, capable of overriding the decisions of lower Courts. If you did not achieve the outcome you wanted in Court, you may consider appealing the decision of the Magistrate or Judge to a higher Court. If this is the case, it is recommended you obtain legal advice before doing filing an appeal.

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Conviction Appeals

If you were found guilty of an offence (or offences) in the Local Court or District Court, and you believe that you are still innocent of the offence, you should obtain legal advice about an appeal against the conviction. To win a conviction appeal you must either show that your trial was seriously unfair or that the outcome is a miscarriage of justice. If you win a conviction appeal, your conviction will be quashed and then one of two things can happen: a re-trial can be ordered or you can be acquitted.

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Severity Appeals

If you were found guilty (or entered a plea of guilty) and you were given a harsh sentence, you may only want to appeal the severity of your sentence. This is called a severity appeal. If you received the sentence in the Local Court, you will need to file a Notice of Appeal to the District Court for a Severity Appeal within 28 days from the date you were given the sentence.

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If you received the sentence in the District Court, you will need to file a Notice of Intention to Appeal for an Indictable Appeal to the Court of Criminal Appeal in the Supreme Court of NSW, within 28 days from the date your sentence was ordered. The effect of lodging your Notice of Intention to Appeal is to inform the Court that you are thinking about appealing. The Court will then give you another 6 months to formally lodge a Notice of Appeal.

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Crown Appeals

If you are given a sentence in the District Court that might be considered “manifestly inadequate” (that is, too lenient for the seriousness of the matter), or if the District Court Judge made a sentencing error, the prosecution may make an application to the Court of Criminal Appeal to challenge the sentence imposed by the District Court Judge. This is called a “Crown Appeal”. The Crown will be the Applicant and you will be the Respondent.

Together with written and oral submissions from the Crown and your defence Counsel, the Court of Criminal Appeal will consider the evidence considered during the District Court sentence, and the reasoning of the Judge for imposing the sentence. Even if the Court were to find that there was a sentencing error or that the sentence was too lenient, it may decide to exercise its “residual discretion” and not allow the Crown Appeal. There is a very high threshold to pass in Crown Appeals.

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If the Crown is successful in their arguments against your sentence, the Court would allow the appeal and may re-sentence you to a heavier sentence. If the Crown is unsuccessful in their arguments against your sentence, the Court would dismiss the appeal and your sentence in the District Court would be maintained.

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If you have been served with a Notice of Appeal from the Crown against your sentence, it is important to engage legal representation as soon as possible to allow time for sufficient preparation of your case. Please contact KF Lawyers if you require assistance and representation.