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Appeal Against Conviction

If a person is convicted of an offence and disagrees with the judgment they can appeal to the Supreme Court to have the conviction overturned. The person needs to appeal within 28 days of the finalisation of the matter in the Magistrates Court. A person wanting to appeal against conviction after the 28-day time limit has expired will need permission from the court.

Effect of Lodging a Notice of Appeal Against Conviction

When a person lodges an appeal against a conviction, any penalty that is the subject of the appeal is placed on hold until the appeal is decided, abandoned or discontinued (Section 216 of the Magistrates Court Act 1930).

If the appellant was sentenced to imprisonment, they may apply for “appeal bail” under the Bail Act 1992. If granted appeal bail, the person will be released from custody pending the determination of their appeal.

If the appellant was sentenced to a non-custodial order, such as a fine, they will not be expected to comply with the order until after the appeal has been determined.

Initiating an Appeal against Conviction

To initiate an appeal a person must file a Notice of Appeal with the Magistrates Court and serve a copy of the Notice of Appeal on the Director of Public Prosecutions.

Section 214 of the Magistrates Court Act 1930 says that the Supreme Court must consider the evidence in the proceeding from which the appeal arose and has the power to draw conclusions from the facts.

If the Supreme Court considers it necessary in the interests of justice it must:

  • order the production of a document or any other evidence that was connected with the proceeding that the appeal arose out of and that could be necessary in deciding the outcome of the appeal; and
  • order any person who was or would have been an important witness in the proceeding to appear before the Supreme Court; and
  • receive evidence from any witness; and
  • receive evidence with the consent of the parties to the appeal.

If evidence is presented, the Supreme Court must receive the evidence unless it is satisfied that there would not be grounds for allowing the appeal even if:

  • the evidence is credible and would have been admissible in the proceeding from which the appeal arose and is related to an issue relevant to the appeal; and
  • the court is satisfied that the evidence was not called in the proceeding and there’s a good reason it was not called.

What happens next?

After a person files an appeal against their conviction, the following procedural steps will be followed:

  • the matter will be given an appeal directions date before the Deputy Registrar;
  • the appellant must file a copy of the transcript of the hearing in the Magistrates Court;
  • the transcript; and the Notice of Appeal and the Schedule of Documents will constitute the material on which the appeal is heard;
  • the Deputy Registrar will ensure that all relevant material will be filed and then docket the matter before a judge and give a callover date;
  • the Deputy Registrar may require an appeal book to be prepared.

Orders The Court Can Make

Section 218 of the Magistrates Court Act 1930 allows the Supreme Court to do any of the following when deciding an appeal:

  • confirm, reverse or vary the conviction, order or decision appealed from; or
  • give the judgement, make an order, or refuse to make an order; or
  • annul the conviction, order or decision appealed from and cancel the proceeding to the Magistrates Court for further hearing and decision, subject to the Supreme Court’s directions.

Any judgement or order the Supreme Court makes has effect as if it was made by the Magistrates Court and will be enforced accordingly.

If you require legal advice about appeals against convictions or any other legal matter, please contact Armstrong Legal.

Andrew Fraser - Managing Associate - Canberra

This article was written by Andrew Fraser - Managing Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

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