What is an appeal?
An appeal is an application to a higher court when you believe that the decision in the lower court was incorrect. In most cases, it is an appeal from the Local Court to the District Court. There are three main types of appeals: severity, conviction and annulment.
What is a Severity Appeal?
If you have been found guilty in the Local Court but believe the penalty was too harsh, an appeal to the District Court can be made. Once the appeal has been lodged, the original sentence and/or penalty is ‘stayed’. This means that the penalty is put on hold until the outcome of the appeal.
If you have been sentenced to a term of imprisonment and make a severity appeal application, you can apply for bail and if granted, you will be released on bail until the outcome of the appeal.
At the appeal, the District Court will look at the sentence imposed and hear submissions from the defence and the prosecution. The Court will then decide to set aside the sentence, vary the original sentence or dismiss the appeal. If the appeal is dismissed, the original sentence from the Local Court stands.
What is a Conviction Appeal?
If the Local Court convicts you of an offence and you believe that the conviction is an error, you can appeal it to the District Court. This is also known as an ‘all grounds appeal’. During this appeal, the Court will look at the transcript of the Local Court hearing and any evidence that was tendered during the hearing. The Court will also listen to submissions from the defence and the prosecution before making a decision. The judge will then uphold or dismiss the appeal.
What is an Annulment?
If a decision was made in the Local Court in your absence, an application could annul the decision under section 4 of the Crimes (Appeal and Review) Act 2001. When deciding the annulment application, the Court will consider the following:
- Whether you were aware of the original proceedings
- Whether you were sentenced in your absence
- Whether you could not take part in the original proceedings due to illness, accident, misadventure or some other significant cause
- Whether it is appropriate to grant the application in the interests of justice
If the annulment application is successful, then the decision of the original court proceeding does not stand. You will then need to be prepared to enter a plea of guilty or not guilty for the matter to proceed. However, if the application is not successful, then the decision of the original court proceeding stands. You can, however, lodge a severity appeal against the original court decision.
How long do I have to lodge an appeal?
You have 28 days to lodge a severity and conviction appeal. If more than 28 days have passed but less than 3 months, will need the Court to grant leave. You cannot lodge a severity or conviction appeal if more than 3 months have passed. For an Annulment, you have 2 years to lodge an application.
How do I lodge an appeal?
An appeal can be lodged at any Local Court. This can be done yourself or by a solicitor. If you choose to appeal yourself, there is a form to fill out called a Notice of Appeal form. The form can be found on the Local Court website or in person at the registry. The Local Court staff will be able to assist you in completing the form.
When lodging the appeal, you may need to pay a fee. This is around $120 and if you are a low-income earner, the Registrar may waive or postpone the fee.
If you are in custody, you can lodge an appeal at the gaol.
When can I appeal?
You can appeal many decisions the Local Court makes, including:
- When you are found guilty of an offence and you say you are innocent
- When you have been given a penalty and you think it is too harsh
- The Court has disqualified your license for a period of time, and you think it is too long
- The Court has refused your application for annulment
- An AVO has been made against you and you do not think it is necessary
- Your application for an AVO was refused
Can I continue to drive if I appeal my licence disqualification?
If the Court disqualified your license and you appeal that decision, the disqualification period will be stayed until the appeal is completed. This means you will still be able to drive until then; it is, however, still best to check with the Court Registry before you get back behind the wheel.
If the police disqualified your license when you were charged, then the disqualification will continue until a decision on the appeal has been made. This means you will be unable to drive.
Can I get a worse outcome if I appeal?
It can happen; however, the Court must warn you if they are considering a harsher penalty. This is called a “Parker Warning.” It means that the Judge in the District Court thinks that you were given a reasonable sentence. When given the warning, you have the choice to continue or not. If you choose to continue, you may be given a harsher sentence. If you choose to withdraw, the original order of the Local Court will stand. It is important to note that even if you are given a Parker Warning, it does not mean the District Court will give you a harsher penalty.
If you are given a Parker Warning, your solicitor will be able to give you advice on the likely outcome of the appeal and whether you should continue or consider withdrawing the appeal.
I have been refused bail; can I appeal?
Yes, you can. If you have been refused bail in the Local Court, you can appeal to the Supreme Court of New South Wales. The Supreme Court process is more formal and requires more information to be submitted with the application. These include:
- Where you will be living and who with. Including an affidavit or letter from the person, you intend to live with stating that you can live there.
- The proceedings number for your charges
Bail conditions you are seeking - Affidavits or letters from anyone that will be responsible for you
- Character references
- Medical reports
- Reasons why you should get bail
Once you have submitted the bail application and it is accepted, you will go before a registrar to get a date for your bail hearing. If you are successful, you will be released on bail. However, if you are unsuccessful, you will have to remain in custody.
We are here to help
Don’t settle for a Court result you are unhappy with. A bad result can have a serious impact on your future. If you are unsure about the prospects of appealing to a Higher Court, we can review your case to assess the likely outcome.
Our solicitors specialise in Criminal Appeals and represent clients in Courts throughout Sydney, the Central Coast, Newcastle and Hunter Regions. We have the experience and expertise to guide you through the court process from beginning to end to get you the best possible outcome.
If you need urgent advice from an experienced lawyer, call one of our criminal law specialists immediately on 1300 529 444 or fill in our contact form to arrange a free initial consultation with a solicitor today. Contact us now! 24-hour legal advice 7 days a week.
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