How Can I Appeal My Case?

If you have appeared in court and were unsuccessful or unhappy with the result, you may be considering if it is possible to appeal your case – the conviction, the sentence or both may be appealed.

If your case was heard in a Local Court, you have a few options. An appeal from the Local Court will usually be heard in the District Court. There is also an avenue of appeal to the Supreme Court, however this is much more rare.

Having a case heard in the District court is usually cheaper and for criminal trials you have a right to appeal using this avenue.

Usually, unless you have the courts permission, you have 28 days after the sentence was given to make an appeal. If you do not make an appeal in this time, the District court may still decide to hear your case on appeal – providing you apply within 3 months – if they choose to do so.

The general rule is that if you wait too long to file an appeal you will need to show there are special circumstances to allow an appeal to be made. Generally, even after a long delay, leave to appeal should be granted if it would prevent a ‘substantial injustice’ from occurring.

This should not be a reason to be lazy about lodging an appeal within the timeframe – it is possible that your application for appeal may not be granted.

You do not have the right to appeal a conviction if you were absent when the case was heard, or if you pleaded guilty.

If either of these things occurred in your case it may still be possible to appeal but you will need leave from the court to do so, but you can make an application for annulment.

Appeals from cases heard in the Local court may also be contested in the Local Court at the place where the original proceedings were held. This process is known as an application for an annulment.

While both the prosecution and defendant may make an application, the defendant can only make an application if they did not appear in court when the original conviction or sentence was decided.

You have two years to make an application for annulment. Applications to appeal must be made in writing and lodged with the Registrar of the Local court. If this annulment is  refused by the Local Court, you can then apply to the District Court.

You can only lodge one application for annulment for the same matter. You may also only lodge one appeal per matter to the District Court.

In order to appeal, you will need to lodge an appeal within 28 days, according to the Crimes (Appeal and Review) Act.

An appeal is not a rehearing of the case – the judge who hears your appeal will not start the case from scratch – they will be going off the transcript of the original case, heard before the trial judge.

This means you will need leave of the court to bring in any new evidence.

One thing to keep in mind when appealing is that the new judge hearing your case may decide to impose an even harsher penalty if they think that the original sentence was not harsh enough!

Fortunately, they can’t do this without warning you first, at which point, you or your lawyer should immediately withdraw the case.

If you appeal a conviction, what the judge will be looking at is not whether or not the magistrate who heard your case made a mistake, but whether they, the District Court judge, is convinced beyond reasonable doubt that you are guilty.

Police prosecution may also argue that a sentence is inadequate, although these are less common. It appears there is no concrete time limit for police to appeal, but failure to do so within a reasonable time may lead to their appeal being dismissed.

If you are thinking of appealing, you will need to weigh up the advantages and disadvantages – it can be expensive, time-consuming and it is even possible to end up with a more severe punishment than you received in the first hearing.

Success is not assured so it is best to evaluate carefully the chance that your appeal will have. Speaking with a lawyer about the chances of success you might be able to expect may be beneficial and on which grounds you may be able to lodge an appeal.