Appeal from
District Court
to the
Supreme Court

Appealing from the District Court to the Supreme Court

A successful appeal to the Supreme Court of Criminal Appeal (CCA) can lead to the overturning of a guilty verdict, resulting in an acquittal, or it may lead to a reduction in the imposed sentence.

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The CCA serves as the highest court in NSW for criminal cases, hearing appeals originating from the District Court.

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There exists a process for appealing a case from the District Court to the CCA. This avenue is available if you believe that you or a loved one has been unfairly or erroneously found guilty or sentenced by a jury or judge.
 

There are 3 primary types of of Appeals to the CCA:

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1. Conviction appeal: challenging the decision of a Judge or Jury to find you guilty;
    

2. Severity appeal: contesting the severity of the sentence issued by the Judge;
    

3. All grounds appeal: lodging both a conviction appeal and a severity appeal simultaneously.
    

For a conviction appeal, the right to appeal to the CCA exists if the grounds involve legal errors exclusively. Permission from the CCA is necessary if the appeal pertains to questions of fact or a combination of law and facts.

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When appealing a sentence imposed by a District Court Judge, permission from the CCA Court is required. This permission is granted if there are valid grounds for appeal.

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What is the time limit and process to Appeal to the CCA?

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Regarding the time limit and process for appealing to the CCA, you have 28 days from the conviction or sentence date to lodge either a Notice of Intention to Appeal or a Notice of Intention to apply for Leave to Appeal. This period may be extended by the court in the interest of justice.

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This 28-day period can be extended by the court if it’s considered to be in the interest of justice.
 

Once the Notice of Intention to Appeal is filed, it will last for 12-months before it expires according to 3.1 of the Supreme Court (Criminal Appeal) Rules 2021. During the 12-month period, you are required to file the following if you wish to continue with the appeal:
 

1. Notice of Appeal; and
    

2. Grounds of appeal; and
    

3. Written submissions in support; and
    

4. A certificate affirming that the transcript of the remarks, summing up and transcripts of the trial or sentence are available; and
    

5. A statement outlining the lawyers appearing in the appeal for you.
    

If the Notice of Intention to Appeal is filed, it remains valid for 12 months before expiration. During this period, you must file the necessary documents to proceed with the appeal. Failure to file within 28 days necessitates filing within three months from the conviction or sentence date.

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Before pursuing an appeal to the CCA, obtaining legal advice from an experienced appeals lawyer is crucial. They will assess the case's merit, including examining relevant documents and determining grounds for appeal.

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What grounds can you appeal on to the CCA?

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The grounds for appeal to the CCA include various factors such as miscarriage of justice, errors in exercising discretion, fresh evidence, unreasonable convictions, inconsistent verdicts, misdirection in the summing up, and procedural unfairness.

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Grounds for a Conviction Appeal (Appealing a Guilty Verdict) include:
 

1. Miscarriage of justice from legal representation.
    

   • Normally, you will be bound by the conduct of your lawyer(s). However, incompetence or carelessness by your legal representative can be grounds of an appeal on the basis that it has caused a miscarriage of justice.
      

2.  Error in exercising discretion to allow or exclude evidence in a trial.
    

   • Where the original court made a mistake as to the facts, failed to consider relevant information, took into account irrelevant considerations, or acted on an incorrect principle of law when exercising a discretion as to allowing or excluding evidence in a trial.
      

3. Fresh evidence.
    

   1. This is where the CCA court can conclude that a miscarriage of justice resulted in the below court from the absence of the fresh evidence at the District Court trial.
       

   2. A conviction can be ‘quashed’ if the fresh evidence you wish to use on the appeal is credible, was unavailable at the trial even after taking reasonable diligence in preparing the case, and where the CCA court can conclude that if the fresh evidence was in front of the jury, the jury would be likely to entertain a reasonable doubt as to the accused’ guilt or a significant possibility that the jury acting reasonably would have returned a verdict of not guilty.
       

4. The convictions are unreasonable and/or cannot be supported by the evidence.
    

   1. This is where the CCA court concludes that after assessing the evidence that was available to the jury, it wasn’t open to the jury to be satisfied beyond reasonable doubt that the accused is guilty.
       

5. Inconsistent verdicts.
    

   1. This is where the CCA court concludes that the guilty verdict(s) by the Jury or Judge to a charge in the District Court is inconsistent (an affront to logic and common sense) with the verdict of guilt to another charge against the accused. This only applies if there is nothing that really differentiates the two charges.
       

6. Misdirection in the summing up by the Judge to the Jury.
    

7. Procedural unfairness.
    

Grounds for a Severity Appeal (Appealing the Severity of a Sentence) include:    
 

1. The original sentence was ‘manifestly excessive’.
    

   • This is where a specific error cannot be shown, but the CCA can conclude that there must have been a misapplication of principle because the sentence imposed is so different from other sentences imposed in other cases that there must’ve been error.
      

2. A specific error was made by the sentencing Judge in any one or more of the following ways:
    

   1. The sentencing Judge failed to take into account material considerations.
       

   2. Factual mistakes: Mistakes as to the facts of the case were made by the sentencing Judge, which were material to the sentence, for example:
       

      • There was no evidence to support the findings of fact relied upon to impose the sentence; or

      • The evidence was all the one way; or

      • The Judge misdirected himself/herself

      • There was an error of fact that may have affected the imposed sentence.
         

   3. Irrelevant matters were taken into account by the sentencing Judge.
       

   4. Wrong principles of law were applied by the sentencing Judge.
       

3. Fresh evidence.
    

   • This is where the CCA allow the appeal on the basis that the fresh evidence:
      

     • Is of such significance that the sentencing Judge in the lower court would possibly have regarded it as having a real bearing on the sentence; and

     • The offender didn’t know of it or didn’t realise its significance; and

     • Where the offender’s lawyer(s) didn’t know about it at the time.

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Can you make a Bail Application on Appeal?

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Bail application during appeal can only be granted by the court under special or exceptional circumstances.

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What are the possible outcomes of a CCA appeal?

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For Conviction Appeals where you Appeal the finding of Guilt, the CCA has power to:
 

1. The CCA court can quash the conviction and immediately acquit the accused person.
    

2. If an error occurred in the original court, the CCA court can remit the case back to the original court for a retrial.
    

3. Dismiss the appeal if no error occurred in the original court; or
    

4. Dismiss the appeal where a miscarriage of justice is not found after being satisfied that an error occurred in the original court.
    

For Severity Appeals where you are Appealing the Severity of a Sentence, the CCA has power to:
 

1. For appeals regarding the severity of a sentence, once error has been identified in the original sentence, the CCA court can then determine whether a lesser sentence is appropriate, and if so, it can impose the new lesser sentence by quashing the original one under section 6(3) of the Criminal Appeal Act 1912 (NSW).
    

2. The CCA court is not required to re-sentence, although the CCA can impose either the same sentence or a greater sentence if it considers this to be the appropriate sentence if it finds error in the original sentence proceedings. However, if the CCA court considers the appropriate sentence to be greater than the original, it will normally inform you of this in advance to give you an opportunity to withdraw the appeal.
    

3. For appeals regarding severity of a sentence, if an error occurred in the original court, the CCA court can remit the case back to the original court with directions on what should be done regarding the issue(s) found.
    

4. Dismiss the appeal if no error occurred in the original court; or
    

5. Dismiss the appeal where a miscarriage of justice is not found after being satisfied that an error occurred in the original court

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Can you use new or fresh evidence in a CCA appeal?

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The CCA court can allow you to introduce fresh evidence if it was always available in the original court but not used, in the following circumstances:
 

• If appealing a guilty verdict (conviction appeal) in the CCA Court, a conviction can be quashed if the CCA Court concludes that the absence of the fresh evidence in the original court resulted in a miscarriage of justice. Fresh evidence can be accepted by the CCA Court if it is credible, was not available at the trial after taking reasonable diligence in preparing for trial, and where it can be said that if it was available for the jury to consider, the jury would likely entertain a reasonable doubt as to your guilt or a significant possibility that the jury acting reasonably would return a not guilty verdict.
   

• If appealing the severity of the sentence in the CCA Court, the CCA Court may allow the fresh evidence if it’s of enough significance that the Judge who originally imposed the sentence would have possibly regarded it as carrying a real bearing on the sentence, and if the you either didn’t know about it, or you didn’t realise the significance of it in circumstances your lawyer(s) didn’t know if existed at the time.
   

For instances of appealing the severity of a sentence from the District to the Supreme Court of Criminal Appeal (CCA) in NSW, you will generally not be allowed to introduce new evidence if the new evidence could have been used in the lower court you were sentenced in.
 

However, the CCA court can take into account any new evidence of events that have taken place after the original sentence, including evidence of the progress of rehabilitation since the original sentence, and any assistance an offender has provided to police or authorities after the original sentence. These things can reduce the original sentence on an appeal. (Betts v The Queen (2016)).
 

Why Choose Invictus Legal for Your District Court Appeal

Invictus Legal offers extensive experience in handling appeals, ensuring you receive the best possible outcome. Our services are available 24/7 via our legal hotline at 0410 600 230.

We also provide free initial consultations for all criminal offense cases, offering an overview of your options and potential outcomes at the earliest opportunity. Don’t risk your future; contact us today to pursue the most favorable outcome for your appeal. 

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If you wish to Appeal, don’t jeopardise your future and contact us today to achieve the best outcome.

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