NSW Criminal Appeals: Expert Guide to Conviction & Sentence Appeals

When a court delivers a guilty verdict and imposes a sentence, the affected party has the right to appeal these decisions to a higher court. The appeals process serves as a crucial safeguard in the NSW legal system, ensuring that potentially unfair decisions or judicial errors can be reconsidered by a higher authority. This comprehensive guide explains the criminal appeals process in New South Wales.

Types of Criminal Appeals in NSW

There are three primary types of criminal appeals in the NSW justice system:

• Severity appeal or sentence appeal: Challenging the harshness of the imposed sentence

• Conviction appeal: Contesting the finding of guilt

• All grounds appeal: Challenging both the conviction and the severity of the sentence

NSW Criminal Appeals Legislation Framework

Criminal appeals in New South Wales operate under these key legislative instruments:

• Criminal Appeals Act 2012

• Crimes (Appeal and Review) Act 2001

• Criminal Appeal Rules

Appealing Local Court Decisions in NSW

If you've been convicted and sentenced in the Local Court, you have the right to appeal to the District Court. Your appeal may challenge your sentence, conviction, or both.

Conviction Appeals from Local Court

In a conviction appeal, the District Court judge will:

• Review evidence presented at the original hearing

• Examine the transcript from the original proceedings

• Consider submissions from both prosecution and defense

• Fresh evidence can only be introduced in specific circumstances and requires the court's permission

The judge may then:

• Set aside your conviction

• Dismiss the appeal

• In certain circumstances, return the matter to the Local Court for redetermination

Severity Appeals from Local Court

In a severity appeal, the District Court judge will:

• Review the sentence imposed by the Local Court

• Consider fresh evidence, which may include your testimony, character references, or psychological reports

• Hear submissions from both prosecution and defense

After consideration, the judge may:

• Set aside the original sentence

• Modify the sentence

• Dismiss the appeal (in which case the original Local Court sentence stands)

Timeframe for Local Court Appeals

All appeals from Local Court decisions must be lodged within 28 days from the date of sentencing.

Appealing a Criminal Conviction in NSW

Following a guilty verdict, defendants have the right to appeal against their conviction. It's important to note that prosecutorial appeals against acquittals are not permitted—once a not guilty verdict is delivered, it remains final.

During the appeals process, any penalties imposed are suspended until the appeal is resolved. Defendants serving custodial sentences may apply for appeal bail, while non-custodial orders are paused pending the appeal outcome.

To succeed in a conviction appeal, the defence must demonstrate at least one of the following:

• The decision contained an error of fact or law

• A miscarriage of justice occurred

• There was a procedural irregularity that affected the outcome

Sentence Appeals in the NSW Court System

Both defence and prosecution can appeal sentencing decisions. Prosecutors may seek harsher penalties if they consider the original sentence too lenient (known as a "Crown appeal" for "manifest inadequacy"), while defendants may pursue more lenient outcomes. When both parties submit appeals, these cross-appeals are heard simultaneously.

Appeal De Novo: Fresh Hearings in NSW Criminal Cases

NSW offers a unique appeal option for defendants convicted in the Local Court or Children's Court—the appeal de novo in the District Court. Unlike standard appeals focused on legal errors, an appeal de novo examines the case afresh, potentially considering new evidence.

The District Court holds authority to overturn the original conviction and acquit the defendant or uphold the initial decision when hearing a de novo appeal.

Appealing District or Supreme Court Decisions

Appeals from the District or Supreme Courts are directed to the NSW Court of Criminal Appeal—the highest criminal court in NSW. These "indictable appeals" are more complex than Local Court appeals.

The Court of Criminal Appeal can hear three types of appeals:

• Challenges to a conviction involving a question of law

• Challenges to a conviction involving questions of fact alone, or mixed questions of fact and law

• Challenges to the severity or adequacy of a sentence

The appellant needs to obtain leave (permission) from the court to argue the second and third types of appeal.

Requirements for Indictable Appeals

To initiate an indictable appeal, you must:

• Complete a Notice of Intention to Appeal (NIA form)

• File it with the court within 28 days of the conviction or sentence

For a conviction appeal to succeed, the Court must determine that the verdict should be set aside because:

• It is unreasonable or cannot be supported by the evidence, or

• The law was misapplied, or

• There was otherwise a miscarriage of justice

A sentence appeal is not a rehearing. The appellant must demonstrate that the sentencing judge made an error in exercising their discretion—not simply that the appeal court might have sentenced differently.

Appealing to the High Court of Australia

In specific and rare circumstances, decisions of the NSW Court of Criminal Appeal may be appealed to the High Court of Australia—the highest court in the Australian judicial system. Criminal appeals reach the High Court only when there's a special reason for the case to be heard, and appellants must obtain the High Court's permission to lodge such appeals.

NSW Court Hierarchy for Criminal Appeals

The appeals pathway in NSW follows this hierarchical structure:

• Magistrate decisions may be appealed to the District Court

• Appeals from District or Supreme Court decisions go to the NSW Court of Criminal Appeal

• In rare cases, appeals from the Court of Criminal Appeal may proceed to the High Court of Australia

When the Court of Appeal upholds an appeal, it may quash the conviction and acquit the defendant or order a new trial.

Should You Pursue a Criminal Appeal in NSW?

If you've been convicted by a magistrate, particularly without legal representation, seeking professional legal advice about your appeal prospects is highly recommended.

For District Court or Supreme Court convictions, professional legal consultation becomes essential before initiating an appeal, as these proceedings involve complex legal arguments and potentially significant costs.

Critical Time Limits for NSW Criminal Appeals

All criminal appeals must be filed within 28 days of the original decision. Appeals filed after this period require the court's special permission (leave).

Contact Invictus Legal for Expert Criminal Appeal Representation

Navigating the criminal appeals process requires specialized knowledge and strategic legal expertise. At Invictus Legal, our experienced criminal defense team has a proven track record of successfully appealing convictions and sentences throughout New South Wales.

Whether you're facing a Local Court conviction or a complex indictable appeal, our dedicated lawyers will thoroughly analyze your case, identify potential grounds for appeal, and develop a compelling legal strategy to protect your rights and interests.

Don't let time limits expire on your appeal opportunity. Contact Invictus Legal today:

• P: 02 8553 0500

• E: info@invictuslegal.com.au

• A: 216 Marrickville Road, Marrickville NSW 2204

Schedule your confidential consultation with our criminal appeals specialists and take the first step toward challenging your conviction or sentence.