When Can You Appeal a Criminal Case?

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For those who have previously never had any dealings with the law, a criminal conviction can be a shocking and completely unnerving experience, especially if you believe you are not guilty or that the sentence is out of proportion to the misdeed. If you have not had legal representation up until this point, get a lawyer now. Act quickly because the time to lodge an appeal is very limited.


Your next steps will depend on two things:  first, whether you were tried and sentenced in a Local Court or the District or Supreme Court; and second, whether you want to appeal the conviction or the sentence.



Appealing a Local Court decision



Local Court decisions may generally be appealed to the District Court. This is done in two steps – first by filing a Notice of Appeal and then by actually lodging the appeal.  Lodging the appeal should be done within 28 days of the original conviction.


If you lodge your appeal in a timely fashion, and if you have been granted bail on a sentence of imprisonment, the sentence will be stayed during an appeal. If you have been denied bail, then your sentence will continue to run. If you do not file within 28 days of your conviction, you will need to ask the court’s permission to appeal. However, if you wait longer than three months, you may be out of luck.  


In a conviction appeal, the District Court’s decision is generally made on the basis of a review of the transcript of the Local Court trial and oral arguments by legal representatives. Only rarely will the District Court hear testimony from new witnesses. You should not think of this as a new trial. It is more accurately a review of the record of the previous proceeding.


If you believe that the sentence imposed by the Local Court was too severe, you may introduce evidence in the form of medical certificates; a report from a rehabilitation centre or counsellor if you have been participating in drug or alcohol rehabilitation; a psychological or psychiatric report if that is relevant or character references.


However in a severity appeal, the District Court may also impose a harsher sentence than the Local Court did. The judge must warn you if he or she is considering this, so that you may withdraw your appeal.


If you win in District Court, the judge may set aside your conviction or decide that you are not guilty. In a severity appeal, the court may reduce your sentence.  If you lose, the decision of the Local Court will take effect and you will be taken into custody if you were out on bail. If you are unsatisfied with the decision of the District Court, you are barred from further appeal to the Court of Criminal Appeals.



Appealing a District or Supreme Court decision



If you were initially tried or sentenced in either the District or Supreme Courts and wish to appeal, that appeal (termed an “indictable appeal,”) will go to the Criminal Court of Appeal. A conviction appeal is usually available only those who were convicted after an initial plea of “not guilty.” A sentence appeal does not address the question of guilt, but only the severity of the penalty.


If both the question of guilt and the severity of the sentence are appealed, that is termed an “all grounds appeal.” The prosecution may also appeal a sentence that it believes is too lenient, in what is called a “Crown appeal.”


In order to pursue an indictable appeal, you must file a Notice of Intent to Appeal within 28 days of your conviction and thereafter, within six months of the conviction, lodge the appeal, itself.

In order to prevail on a conviction appeal, you must demonstrate that the trial was seriously unfair or that the outcome is a miscarriage of justice. If you are successful in a conviction appeal, the court may either acquit you or order a retrial. Most successful conviction appeals result in a retrial.


In order to prevail with a sentence appeal, you must demonstrate that:


  • the lower court made an important error when it sentenced you; and
  • you deserve a lesser sentence.


If you are successful in a sentence appeal, the court will re-sentence you. However, you will have the opportunity to introduce new evidence about positive directions in your life, which the court will take into account. Your sentence will not be increased, as it might be in the case of a Crown appeal.  


The attorneys at Owen Hodge Lawyers would be happy to assist you to appeal a criminal case. Please contact us at 1800 770 780 to schedule a consultation.

At Owen Hodge Lawyers, we always strive to provide you with the best legal advice and guidance – no matter your issue. We specialise in a range of law matters, and have a blog that offers in-depth and comprehensive articles. Read our latest post on how to write a character reference and more on the Owen Hodge blog today.


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