Appeals to the Court of Criminal Appeal
The first step in an appeal to the Court of Criminal Appeal is to file a document with the court called a Notice of intention to appeal. The offender has 28 days from when they were convicted or sentenced to do this, although the court is usually flexible with the deadline if there are good reasons for a delay. The court will notify the ODPP if the offender takes this first step, and we will tell the victim.
A Notice of intention to appeal has to state what the appeal is against (the conviction, the sentence, or both) but not the reasons for it. Its purpose is to let the court know that a party is likely to appeal and has started getting copies of the transcripts, exhibits and other documents from the trial or sentencing they need to make a final decision and prepare their case.
An offender who then decides to go ahead with the appeal has six months from filing their Notice of intention to appeal to let the court know this. They do so by filing a second, more detailed, document, called a Notice of Appeal. This document has to include the reasons (grounds) for the appeal and arguments supporting those grounds. Again, the court can give extensions if there is a good explanation for not meeting the six-month deadline – for example, if there was a delay in getting the trial transcripts from the District or Supreme Court. These extensions are usually for three months at a time and the court can give more than one, which means it could be nine months, 12 months or even longer after a conviction or sentencing before the offender files their Notice of appeal.
Many appeals to the Court of Criminal Appeal also need the court’s permission (‘leave’) to proceed, but parties usually apply for this when they lodge their appeal documents and it is normally granted.
There is no fixed time limit for the ODPP to lodge an appeal against an offender’s sentence, but if we are appealing we will do so as quickly as possible and will always talk to the victim first.
An offender who has filed a Notice of Intention to appeal doesn’t have to let the court or the ODPP know if they then decide not to go ahead with the appeal, although they sometimes do. They can instead just let the deadline pass for filing their Notice of appeal.
While this will usually mean the case is over, it’s important to know that an offender whose deadline has expired can still apply for what is called leave to appeal ‘out of time’. If the offender’s lawyer can satisfy the court that there were good reasons for not filing the Notice of appeal on time, the appeal will usually be allowed to proceed. The ODPP will object to these applications if we don’t believe the reasons for missing the deadline are strong.
Once a party files a Notice of Appeal, the court will list the matter for a ‘callover’ to set the hearing date. At the callover, the court will also set the timetable for the offender (now called the ‘appellant’) to file more detailed submissions on why their appeal should be allowed, and for the ODPP to respond.
The offender can apply for bail while waiting for an appeal to the Court of Criminal Appeal, but it will only be granted in ‘special or exceptional circumstances’.
An appeal to the Court of Criminal Appeal is usually heard in Sydney by three judges, and typically takes less than half a day.
The judges will have read both sides’ submissions (arguments), the transcripts from the District or Supreme Court and other relevant documents and will be familiar with the issues. On the day, they will ask the offender’s lawyer and the ODPP to speak about the written arguments they filed.
Fresh evidence is not admitted, unless it is necessary to avoid a miscarriage of justice.
You won’t be called to give evidence in these appeals. The Court of Criminal Appeal doesn’t rehear matters, it examines whether the law has been applied properly.
The court is open to the public and you can attend the appeal hearing if you would like to.
The appellant has the right to attend the hearing, even if they are in custody.
In sentence appeals, the judges often deliver the decision on the hearing day, and, if the appeal is allowed, immediately re-sentence the offender. In a conviction appeal, they will usually ‘reserve’ the decision until a later date, which could be weeks or even months away. The ODPP and the offender’s lawyers will usually get one or two days’ notice before the judgment is then delivered in court.
An appeal to the Court of Criminal Appeal will take at least six months and often more than a year from start to finish.
The ODPP has a special group to deal with appeals to the Court of Criminal Appeal, called the Appellate Litigation and Legal Resources (ALLR) group. Solicitors from the group, together with senior Crown Prosecutors, prepare appeals, and the Crown Prosecutors appear in court during the hearings.
Your ODPP contact throughout the appeals process will be the solicitor from the group who is handling the appeal.
Conviction appeal results
If the court dismisses the offender’s appeal against their conviction, the ‘guilty’ verdict will stand.
If the offender wins a conviction appeal, the court will quash the conviction and either:
- acquit the offender, which means they are free to go, or
- order a retrial, if there has been a ‘miscarriage of justice’.
A retrial is a new trial on the same charges. Witnesses who gave evidence the first time may have to do so again, although victims of sexual assault can instead have their earlier evidence (which will have been recorded) played. If the court does order a retrial, the ODPP will give victims and other witnesses more information about what this means and how it will affect you.
Sentence appeal results
If the court dismisses a sentence appeal, the offender has to serve the sentence they originally received.
If either the ODPP or the offender wins a sentence appeal, the court will resentence the offender. The new sentence has to be within the range the District or Supreme Court could have imposed.
New evidence about what the offender has been doing since their sentencing – for example, drug and alcohol or other rehabilitation programs – can be put to the court in a resentencing.
Court of Criminal Appeal decisions are nearly always the final step in a case. They can only be appealed to the High Court, and only then after the High Court has given ‘special leave’ for the appeal to be heard.
Appeals to the District Court
To appeal to the District Court against a Local Court conviction or sentence, an offender has to file a Notice of Appeal within 28 days. This has to state what the appeal is against (the conviction, sentence, or both) and the grounds for the appeal.
If the offender misses this deadline, they can apply to the District Court for leave (permission) to appeal if it has been less than three months since the conviction or sentencing. After three months, it is too late to appeal.
If the District Court grants leave to appeal, it sometimes hears the appeal straight away, but often adjourns it to a later day. Appeals against convictions are more likely to be adjourned than sentence appeals.
This same process applies if the ODPP is appealing against a sentence.
An appeal to the District Court will be listed before a single judge, normally within two or three weeks of being filed, although it can be longer in regional NSW.
If the appeal is against a conviction, there will usually be a ‘mention’, or ‘call-over’ before it is heard. Sentence appeals are usually dealt with straight away.
In a District Court appeal, the judge decides the matter as if hearing it for the first time after reviewing all the documents and evidence from the Local Court proceedings – including the transcripts if there was a hearing.
If it is a sentence appeal, fresh evidence can be presented and it is common for an offender’s lawyer to provide psychiatric or psychological reports, character references, and updated pre-sentence reports. Sometimes the character witnesses, such as the offender’s employer, family or friends, will give evidence. The offender might give evidence themselves, for example, to tell the court they are sorry for the crime, about rehabilitation or other programs they have started, or about the impact being in custody would have on them and their family.
In a conviction appeal, fresh evidence can only be presented in the ‘interests of justice’. The judge’s permission is required to call witnesses, and there has to be ‘special reasons in the interests of justice’ to call a witness if the offence involved violence.
In a conviction appeal to the District Court, the judge will either:
- set aside their conviction, meaning the offender is free to go
- dismiss the appeal, which means the conviction stands.
In a sentence appeal (by the offender or the ODPP), the judge will either:
- allow the appeal and resentence the offender (the new sentence has be within the range the Local Court could have imposed)
- dismiss the appeal, meaning the Local Court sentence stands.
A judge hearing an offender’s sentence appeal can increase rather than reduce the sentence, but has to warn the offender if they are considering doing so. The offender then has the chance to withdraw the appeal.