Appeals

The Crimes (Appeal and Review) Act 2001 (NSW) provides routes from the Local Court to the District Court for appeals against conviction, sentence or both. The route depends on what happened in the Local Court, including whether there was a guilty plea, a defended hearing or a decision made in your absence.

An appeal against sentence is often called a severity appeal. It asks the District Court to reconsider the sentence, not simply to investigate whether someone disagrees with the result. A conviction appeal challenges the finding of guilt. These are different decisions with different preparation requirements.

Time limits are short. Obtain advice promptly after the Local Court decision and provide the conviction and sentence dates, the orders made and the documents received.

The following summarises the ordinary defendant pathways. Statutory exceptions, including timely annulment applications, can affect the calculation.

The three-month period is not an automatic extension of the ordinary deadline. Leave is required. The two-year annulment period is not a general appeal deadline and does not make every old conviction eligible for reopening.

Do not calculate a deadline from when you first read an online guide or obtained legal advice. Give the lawyer the actual court dates and any earlier applications so the correct limit can be identified.

Under s 11, a defendant generally has an appeal as of right against a conviction following a defended hearing and against a sentence. Section 12 requires District Court leave for an appeal against conviction following a guilty plea or a conviction in absence.

Section 12 also limits that route where the person is eligible to apply for annulment under s 4 but has not done so, or the annulment application remains unresolved. A guilty plea cannot simply be withdrawn by lodging a form without addressing the applicable legal requirements.

Section 13 concerns late appeals within its outer limit. The court decides whether leave should be granted. Explain any delay fully and provide supporting records; do not assume that a reasonable explanation guarantees leave.

Section 18 provides for a rehearing based on the evidence given in the original Local Court proceedings. It is not ordinarily a complete new hearing in which every witness automatically attends again.

Fresh evidence requires leave, which may be granted where the District Court is satisfied that it is in the interests of justice. Section 19 separately regulates when a witness may be directed to attend and give evidence, with particular protections in violence-related cases.

Preparation commonly involves obtaining the transcript, exhibits, reasons and relevant procedural records. A lawyer can identify the disputed findings and how the evidence bears on them. New information should be discussed early so any necessary application can be prepared.

The prosecution's case remains subject to the criminal standard of proof. An appellant does not become responsible for proving innocence merely because the Local Court previously found the charge proved.

A sentence appeal involves a rehearing under s 17. The District Court considers the sentence in light of the evidence and submissions. A lawyer can explain what material is relevant and whether further evidence about rehabilitation, health or personal circumstances should be obtained.

The court can decide not to interfere with the sentence or make an order within its lawful powers. An appeal is not a guarantee of a reduction. There can be a risk of a more severe sentence, so advice should address warning procedures and the options available if that issue arises.

Bring the sentencing remarks, orders and any material presented below. Do not assume that repeating the original submissions is enough or that a change in personal circumstances necessarily establishes the appropriate result.

An appeal is a procedure, not a new criminal offence with its own imprisonment maximum.

Table 1, Table 2 and strictly indictable classifications govern the original offence's trial pathway. They do not classify the appeal itself. This guide concerns Local Court appeals, not the separate Court of Criminal Appeal procedure for District or Supreme Court decisions.

An eligible person convicted or sentenced in absence may apply to the Local Court at the place of the original proceedings. Section 8 sets out the grounds on which the application is to be granted, including relevant lack of awareness, accident, illness, misadventure or other grounds in the interests of justice.

The application must explain the circumstances and provide evidence where available. A defendant who lodged the specified written guilty-plea notice under s 182 of the Criminal Procedure Act 1986 is excluded by s 4(1B).

Annulment, where granted, reopens the matter for the appropriate further proceedings. It does not automatically dismiss the underlying charge. Advice should distinguish reopening the case from successfully defending it.

Do not assume so. Section 63 contains stay provisions and exceptions. Bail, custody, disqualification and other orders require individual checking, including whether a separate stay application is needed.

Before driving or changing arrangements, obtain confirmation of the operative orders and any licence consequences. An AVO or a separate proceeding does not disappear merely because a criminal appeal has been lodged.

A conviction appeal after a guilty plea requires leave under s 12 and a proper legal basis. A sentence appeal is a different route. Obtain advice before deciding which decision you want to challenge.

No. Section 13 requires leave and sets an outer time limit for that route. The explanation for delay and the circumstances of the proposed appeal need assessment.

Not ordinarily. A conviction appeal generally proceeds on the original evidence, with fresh evidence and witness attendance controlled by ss 18–19.

No. If a decision is annulled, the original matter can proceed again according to law. An annulment removes the relevant decision; it does not decide the merits of the charge.

A criminal lawyer can identify the correct route, calculate deadlines, obtain the necessary record and advise on prospects, risks and any stay or bail application. They can prepare leave applications, written submissions and the material needed for the hearing.

Contact Austere Legal promptly with the Local Court orders and dates. Delay can restrict options even where there are substantial concerns about the original result.

This information is general in nature and does not constitute legal advice. The appropriate approach to an appeal or annulment application depends on the circumstances of each individual case.