Criminal matters in Australia are dealt with independently in each and every state in conformity with the respective State or Territory laws. In some of the Australian States, including New South Wales (NSW), the Court of Criminal Appeal (CCA) is the highest Appellate Court at the State level for criminal matters.
Experienced criminal defence lawyers like the Sydney-based team of specialists at Owen Hodge Lawyers can help you throughout the criminal appeals process to get you the best possible result.
Hierarchy of making Criminal Appeals
Criminal appeals in NSW are generally governed by the Crimes (Appeal and Review) Act 2001 (the Act). Under Section 11(1) of the Act, you can make an appeal to the District Court against a conviction or a sentence imposed by a Local Court by lodging a written Notice of Appeal or an Application for Leave to appeal either with the Registrar of the Local Court or the person in charge of the place where the appellant is in custody. In this context ‘appellant’ means the person making application for leave to appeal. The appeal should be made either within a period of 28 days from the date of the Local Court’s decision or within a period of 3 months upon obtaining leave of the District Court.
According to Section 18 of the Act, an appeal against conviction should be made by way of rehearing based on the evidence submitted in the original Local Court proceedings, except in circumstances where evidence is required to be given in person. The District Court may determine an appeal against conviction either by:
- (a) Setting aside the conviction;
- (b) Dismissing the appeal; or
- (c) Setting aside the conviction and remitting the matter to the original Local Court for redetermination as per the District Court’s direction(s) where an appeal has been made with leave under Section 12 (1) of the Act.
Similarly, the District Court may determine an appeal against a sentence either by setting aside or varying the sentence or by dismissing the appeal. However, under Section 71 of the Act, the District Court may not make an order or impose a sentence that could not have been made or imposed by the Local Court. You can also make an appeal or obtain leave to appeal to the Land and Environment Court against the Local Court’s decisions for conviction, sentence and dismissal of proceedings in cases involving environmental offences.
Under Section 52 of the Act, you can also make an appeal to the Supreme Court against a conviction or sentence of the Local Court on a ground that involves a question of law within 28 days of the decision. If the ground of appeal involves a question of fact or a question of both fact and law, you may appeal to the Supreme Court subject to obtaining leave of the Supreme Court. Appeal can also be made on a ground involving question of law to the Supreme Court against an Order of the Magistrate in relation to any committal proceeding or an interlocutory order made by the Local Court in summary proceedings only by leave of the Supreme Court.
Section 3 of the Director of Public Prosecutions Act 1986 (the DPP Act) defines committal proceeding as “hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence”. Indictable offence as per the DPP Act means an offence that may be prosecuted on indictment. The Supreme Court may determine an appeal against a sentence either by setting aside or varying the sentence or by dismissing the appeal or by referring back the matter to the Local Court for redetermination as per with the Supreme Court’s directions.
You may prefer an appeal to the CCA against a conviction or a sentence either by the Supreme Court or the District Court Judge or against decisions of the Land and Environment Court in its criminal jurisdiction. The ground of your appeal should include a dispute to a conviction involving a question of law. However your ground of appeal may also involve a question of fact or a mixed question of both law and fact subject to the grant of leave by the CCA.
The CCA also has the authority to grant leave in matters challenging the severity or adequacy of a sentence. In most cases, appeals are heard by a bench comprising of three judges. Matters involving significant legal issues are heard by a bench comprising of five judges. In situations of incongruity among the judges, the majority view prevails.
For more information or expert advice on criminal appeals, contact Owen Hodge’s experienced criminal lawyers in Sydney.