If you believe that a penalty or sentence was too severe or you were unreasonably found guilty, or you would like to contest a traffic offence then you would lodge what’s called an ‘appeal’.

An appeal can be lodged in instances where the penalty was too severe, because you are not guilty, licence appeals for driver licence, appeals for not attending court when required, appeals by Police or Department of Public Prosecutions.

Severity Appeals- Local Court

If it is believed that a sentence handed down by the Local Court was to severe or there are valid reasons as to why the sentence should not be given such as the need for a driver licence, then a severity appeal may be lodged. A severity appeal needs to be lodged within 28 days of the sentencing date.

If for valid and exceptional reasons the severity appeal wasn’t lodged within 28 days after the sentencing date, then it may be extended to 3 months. Once an appeal is lodged, an appeal hearing date will be given, this appeal hearing usually occurs within a month.

At the appeal hearing the District Court judge will be given what’s called a ‘sentencing bundle’ by the prosecution. This bundle will have relevant information about the alleged accused, such as what the charges were, what was handed down at sentence and what the maximum penalties for that charge are. The sentencing bundle will also contain anything that was handed up to the magistrate in the Local Court such as Dr reports, character references, and letters of apology.

During the appeal hearing your criminal lawyer can call you to the witness stand to ask questions related to the appeal, such as why you need your licence back or why you need to have a conviction free criminal record. Your criminal lawyer will argue the reasons for the appeal, and hand up any additional material such as character references or medical reports.

Once the judge has heard from your criminal lawyer and the prosecution, the judge will then decide whether the penalty was too severe and give you a lesser penalty or if the penalty remains unchanged from the Local Court sentence. If the judge believes that your appeal has no merit and is thinking of sentencing you to a harsher penalty then the judge will orally warn you and your lawyer that a “Parker warning or direction” is what the judge is thinking. This is a warning to immediately withdraw the appeal so that a harsher penalty or sentence is not handed down to replace the original sentence of the Local Court.

Severity Appeal-District Court

If it is believed that a sentence handed down by the District Court was to severe, then a Notice of Intention to Appeal may be lodged. A Notice of Intention to Appeal needs to be lodged within 28 days of the sentencing date. A District Court sentence is appealed to the NSWCCA (New South Wales Court of Criminal Appeal).

After a Notice of Intention to Appeal has been lodged, A Notice of Appeal will have to be lodged within 6 months thereafter. The NSWCCA will give a timetable for the dates for the filing of Grounds of Appeal by the appellant (the accused) and written submissions by both the appellant and respondent (prosecutor).

The appeal will be given a date for hearing. At an appeal hearing, submissions are made by both parties and the NSWCCA will decide on the sentence that was handed down in the District Court.

The NSWCCA can:

• – agree with the District Court sentence and keep the sentence unchanged
• -disagree with the District Court sentence and impose a lesser sentence, or
• -disagree with the District Court and impose a greater sentence.

Conviction Appeals

If it is believed that a judge or magistrate incorrectly found an alleged accused guilty or applied the law incorrectly then a ‘conviction appeal’ may be lodged.

A ‘conviction appeal’ is made when an individual was incorrectly found guilty of a charge, and an appeal is made to overturn the incorrect finding.

Conviction Appeals – Local Court

If it is believed that an incorrect finding of guilt or law was applied incorrectly at the local court then a ‘conviction appeal’ may be lodged. A conviction appeal needs to be lodged within 28 days of the sentencing date.

If for valid and exceptional reasons the severity appeal wasn’t lodged within 28 days after the sentencing date, then it may be extended to 3 months. Once an appeal is lodged, it will be given a date for mention, this day in court is set aside so that the transcript of what was said in court during the Local Court proceedings can be ordered.
The transcript will include any of the oral evidence that was given at the local court hearing. The transcript will be prepared within 8 weeks, and it will be sent to the District Court to have the matter listed for Hearing.

During the hearing the district court judge will read the transcript from the local court and review all material that was relevant or handed up during the hearing. These include police interviews, photos, police statements, reports etc.
After the district court judge has read all the material he will then turn to the lawyers and decide on the conviction.

The Judge can either uphold the appeal and quash the finding of guilt or refuse the appeal and confirm the finding of guilt.

Conviction Appeals- District Court

If it is believed that a sentence handed down by the district court was wrongfully handed down for any reason then a conviction appeal to the Supreme Court or NSWCCA can be made.

Conviction appeals are usually lodged when the accused didn’t have proper legal representative which then led to a miscarriage of justice, Jury reached a verdict that was not supported by the evidence, judge misdirected the jury about the relevant law or other areas of law that the judge failed to apply.

A Notice of Intention to Appeal needs to be lodged within 28 days of the sentencing date. After a Notice of Intention to Appeal has been lodged, A Notice of Appeal will have to be lodged within 6 months thereafter.

The matter will be given a court date, on this court date a timetable will be given for lodging the Grounds of Appeal as well as written submissions which are written arguments prepared by your lawyer.

The appeal will then be given a hearing date. At the hearing any relevant material to the trial will be read, including trial transcript, police interviews, and pictures.

The appeal will be given a date for hearing. At an appeal hearing all relevant material will be re visited, these include trial transcripts, pictures, any material that was handed up or used in trial will be read and re visited.
Verbal submissions are made by both parties and the court will decide whether the conviction stands or the conviction is quashed.