If you’re not happy with the outcome of your court hearing, you can appeal your conviction, your sentence, or both.
If you have been found guilty of a criminal or traffic offence after a trial, you can appeal your conviction.
If you have been sentenced by a court, after a trial or after pleading guilty, you can appeal the sentence.
The court procedure for appeals is slightly different depending on whether you are appealing the decision of a Magistrate from the Magistrates Court, or if you are appealing the decision of a Judge from the District or Supreme Court.
The main thing to note about appeals is that they are not to provide you with another go at your court hearing. Appeals must be based on specific errors that occurred as a matter of law at your trial or at your sentencing. Therefore, the grounds of appeal that you rely on must allege that the Judge or Magistrate made a specific legal error, or that the verdict reached was not supported by the evidence.
Bluntly put, appeal courts are not concerned with whether someone is guilty or innocent; they are concerned with whether a legal error was made at your court hearing.
Appeals from decisions in the Magistrates Court
If your matter was heard in the Magistrates Court, and you would like to appeal the outcome (either the conviction or the sentence imposed), then you will need to lodge the appeal in the Supreme Court and it will be heard by a Supreme Court Judge. These are known as Single Judge Appeals.
The first step in an appeal is to file an Appeal Notice. This is a document that puts the Court and the prosecution on notice that you are appealing, and sets out the grounds of appeal. This Appeal Notice must be filed within 28 days of your sentencing date.
In appeals, the term for the party appealing is the “appellant” and the prosecutor who is responding to the appeal is referred to as the “respondent”.
You will need to also file a copy of the relevant court transcripts and a certified copy of the prosecution notice, and serve a copy of everything you are filing on the respondent. The respondent in single judge appeals may either be the Office of the Director of Public Prosecutions (DPP) or the State Solicitor’s Office (SSO).
You will then need to prepare written submissions outlining why you say your appeal should be allowed, and the outcome that you are seeking. The respondent will also file submissions in response and, eventually, a hearing will be listed before a Judge in the Supreme Court for you to argue your case.
Please be aware that, if your appeal is unsuccessful, the respondent may seek legal costs against you, meaning you may be liable to pay their costs of the appeal.
Appeals from decisions in the District/Supreme Courts
If your charges were heard in the District or Supreme Court, the process for appealing involves a few more steps. These appeals are heard in the Court of Appeal.
Firstly, you will need to file an Appeal Notice in the Court of Appeal and serve it on the respondent. The respondent in these appeals is the DPP. This Appeal Notice must be filed within 21 days of your sentencing date.
After an appeal notice is filed, you will be required to file your submissions, known as the Appellant’s Case, within eight weeks.
Prior to getting a hearing in the Court of Appeal, you must first be granted ‘leave’ or permission to appeal. This is a step by which the Court determines early on whether an appeal has merit and should be allowed to proceed further.
A judge from the Court of Appeal will then read your documents and determine whether:
- They are satisfied from reading your submissions that your appeal has some merit and that leave (permission) to appeal should be granted; OR
- They are not satisfied from reading your submissions that the appeal has merit and they require you to attend at a hearing to argue whether leave to appeal should be granted; OR
- They are not satisfied from reading your submissions that the appeal has merit and leave to appeal is not granted meaning your appeal is dismissed at this step; OR
- They simple refer the question of leave to the hearing of the actual appeal.
If you are granted leave, or leave is referred to the actual hearing of the appeal, the next step will be for the respondent to file submissions in response to yours.
After that, you will be notified that a hearing will be listed.
A hearing is generally listed before three Judges of the Court of Appeal. On the hearing date, all of the Judges presiding would have read all of the paperwork and will generally ask you to answer certain questions or discuss certain points.
After the hearing, you will be told whether there is a decision that will be delivered immediately, or whether the decision is “reserved” meaning you will need to come back on a later date for the decision.
An appeal in the Court of Appeal can usually take about 9 months from start to finish. In certain cases, you may be able to apply for an expedited appeal which will be heard sooner.
The importance of getting legal advice
Because appeals are very technical in nature, and the appeal grounds must focus on specific errors of law, it is important to get legal advice about whether your appeal has any merit and, if so, on what grounds.
A lawyer will be able to read the relevant transcripts, either from your trial or sentencing, and provide you with an opinion about whether there is merit in appealing. A lawyer will also be able to prepare and file and serve all of the necessary paperwork and attend at the court hearings for you.
It is particularly important to seek advice about whether there is merit in appealing in Single Judge Appeals because you may face the added consequence of having to pay the respondent’s costs where your appeal has no merit and fails.
Chambers Legal ordinarily obtains the expert advice of a barrister practicing in appeals.
If you would like to discuss your potential appeal, please contact Chambers Legal on (08) 9500 8915 or at [email protected].