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 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. 

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 ODPP to file written submissions in response.

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.

First step

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.

Second step

An offender who then decides to go ahead with the appeal has 12 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. If the offender does not file the Notice of Appeal within 12 months, they also have to file an application for leave to appeal out of time. This application is usually considered by the court at the same time as the appeal is heard. 

The ODPP has 28 days from sentence to file an appeal against leniency. Sometimes the ODPP will file an appeal but then need to review it when the transcript and judgment is available. 

The offender has the right to attend the hearing, but if they are in custody they will appear by an audio visual link (AVL).

Victim Impact Statements can’t be made in appeals to the Court of Criminal Appeal, but the judges will have a copy of any statement made earlier.

The court will almost always ‘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 can 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 specialist Crown Prosecutors, prepare appeals, and the Crown Prosecutors appear in court during the hearings.

Your ODPP contact throughout the appeals process will be the ALLR solicitor.

Conviction appeal results

If the court dismisses the offender’s appeal against their conviction, the ‘guilty’ verdict will stand.

If the offender is successful in their 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 a sentence appeal by an offender of the ODPP is successful, the court will almost always 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 – may be considered by the court when 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.