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A fundamental component of a fair trial is the capacity to appeal the outcome. One reason why this is fundamental to justice is because even learned magistrates and judges can make errors. These can be errors of fact (where a factual circumstance has been ignored or inadequately accounted for) or errors of law (for example in the application of a law, such as the law of self-defence). The Local Court is presided over by a single judge.
A criminal appeal can be to appeal the conviction (called a conviction appeal), to appeal the severity of a sentence (called a severity appeal) or both, which is called an all grounds appeal. This is enabled under Section 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) which states:
“(1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).
Time limits do apply. Subsection 2 of Section 11 states that:
(2) An appeal must be made—
(a) within 28 days after sentence is imposed, or
(b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part,
but (in the case of an appeal against a conviction) may not be made before sentence is imposed.”
As stated in Section 11(2)(2), an appeal must be made within 28 days after the sentence has been imposed. But what happens if you wish to appeal after this timeframe?
Pursuant to Section 13 of the Crimes (Appeal and Review) Act 2001 (NSW), you can make an application within 3 months of the conviction being made or sentence being imposed, but only with the permission (what is called leave) of the District Court of NSW.
It is curious that time limits are imposed on defendants making an application, where the State is subjected to no time limits in charging an individual with an indictable offence. What happens if new evidence comes out years later, after you have been convicted or completed your sentence, how can you go about clearing your name? Furthermore, in the Legal Aid NSW Submission to the NSW Law Reform Commission in August 2013, Legal Aid states that in order to succeed in an appeal from the Local Court to the District Court, the court transcript would likely be necessary (in order to show that the court has made an error). Legal Aid NSW states “In the experience of Legal Aid NSW, the average wait for a transcript is approximately three months”. What happens if it takes four months to get the transcript in order to prove that the Court has made an error of fact or law? Legal Aid NSW stated “consideration should be given to extending the timeframe to six months after the Local Court decision was made in a range of limited circumstances”. With regard to Federal criminal offences, one potential avenue is the Royal Prerogative of Mercy, which we shall discuss later.
You must present to the court one or more grounds for your appeal, within 28 days of your conviction or sentence. You can make an application within 3 months of your conviction or sentence, but the District Court has to give you permission to make a late application.
There are a variety of grounds which can be made, including errors of fact or errors of law made by the Court. For example, that a magistrate erroneously applied the law of self-defence. This is an error of law. Or the magistrate makes a factual error which can have significant consequences.
Making an appeal is not a decision that should be undertaken lightly, for if you are unsuccessful in your appeal, under Section 16(3) of the Crimes (Appeal and Review) Act 2001 (NSW), “If the District Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just”. You are the appellant (the person making the application for your conviction to be quashed and/or your sentence to be made less severe). For this reason, it is highly advisable you consult an experienced criminal lawyer to assess the merit of the options available to you.
Appeals on questions of law by a person convicted or sentenced in the Local Court can be appealed to the Supreme Court, pursuant to Section 52 of the Crimes (Appeal and Review) Act 2001. The Prosecutor can also appeal to the Supreme Court against:
other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone, pursuant to Section 56 of the Crimes (Appeal and Review) Act 2001.
A person that has been convicted or sentenced with respect of an environmental offence, under Section 31 of the Crimes (Appeal and Review) Act 2001 can appeal to the Land and Environment Court against the conviction or the sentence.
Appeals (which includes referrals) from the Presidential Children’s Court, under Section 22A of the Children’s Court Act are to be dealt with by the Supreme Court of NSW. However, in practice, as identified by Legal Aid NSW, any young person who is sentenced by a Children’s Court Magistrate has their appeal determined by the District Court of NSW, whilst any young person sentenced by the President of the Children’s Court, has their appeal dealt with by the Supreme Court of NSW. As identified by the Legal Aid NSW Submission to the NSW Law Reform Commission in August 2013, this is a questionable allocation of the court’s resources.
The current framework in place for appeals from the Drug Court of NSW is to the Court of Criminal Appeal. This is for summary as well as indictable matters. We note that it is only the sentences handed down by the Drug Court of NSW that are the actual subjects of review by appeal.
The District Court is presided over by a single judge. Pursuant to Section 80 of the Australian Constitution, “the trial on indictment of any offence against any law of the Commonwealth shall be by jury”. However, defendants can elect to have a judge alone trial, meaning there is no jury.
In the event a party is dissatisfied with a Judge’s or a Judicial Registrar’s judgment or order in an action may appeal to the Supreme Court, pursuant to Section 127 of the District Court Act 1973. A person who is party to proceedings in the District Court in its criminal jurisdiction can submit a question of law for determination in the Court of Criminal Appeal pursuant to Section 5B of the Criminal Appeal Act 1912.
In the event that an appeal is made after a jury trial, pursuant to Section 127A of the District Court Act 1973, this appeal shall be made to the Supreme Court of NSW.
Pursuant to Part 3 of the Criminal Appeal Act 1912, a person convicted by the Land and Environment Court in its summary jurisdiction can appeal to the NSW Court of Criminal Appeal.
Appeals from the Industrial Court of NSW are made to the NSW Court of Criminal Appeal.
The Supreme Court is presided over by a single justice. Appeals regarding a decision from the Supreme Court of NSW are made to the NSW Court of Criminal Appeal, with leave of the Supreme Court, pursuant to Part 7 of the Supreme Court Act 1970.
Three justices preside over the NSW Court of Criminal Appeal. Appeals from the NSW Court of Criminal Appeal are made to the High Court of Australia.
Pursuant to Section 11 of the Australia Act 1986, no appeal to Her Majesty in Council lies or shall be brought in respect of any decision of an Australian Court. Thus, the High Court of Australia sits at the apex of both our judicial structure with regard to the State of NSW and the Federal Court structure.
Historically this was a body of advisors to the British Monarchy. Overtime, this body developed into a final Court of Appeal for the Courts of the British Colonies, Australia included. Before Federation, judicial cases in the Australian Colonies could be appealed to the Privy Council. However, with the with the introduction of the Australia Act 1986, the Australian Commonwealth confirmed its sovereignty and independent status from Britain.
The Governor-General can, acting on the advice of the Attorney-General, pursuant to Section 61 of the Australian Constitution, exercise a discretionary power called the Royal Prerogative of Mercy. This is not a simple thing to achieve, nor an easy one, otherwise everyone convicted of a federal offence would pursue this avenue. Remember, this power is at the discretion of the Governor-General, the Governor cannot be forced to use it. For such reasons this avenue is not a common one to pursue.
Please note that the Royal Prerogative of Mercy can only be exercised in relation to an individual who has been convicted of a Commonwealth offence (a federal offence, not a state offence).
The Royal Prerogative of Mercy can:
A petition can be made to the Governor General under Section 76 of the Crimes (Appeal and Review) Act 2001 (NSW). In consideration of a petition, the relevant Minister may refer the whole case to the Court of Criminal Appeal, to be dealt with under the Criminal Appeal Act 1912 (NSW), pursuant to Section 77(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).
To apply for a petition, you must:
You can email your application to cpo@ag.gov.au.
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