Appeals Against Conviction
An appeal against a decision by a Local Court Magistrate that you are guilty of an offence is known as a conviction appeal or all grounds appeal. Provided the appeal is lodged within 28 days of the finalisation of the matter in the Local Court you have a right to appeal.
If an appeal is filed after 28 days but within 3 months a person may still appeal but needs to get the leave (permission) of the District Court to do so.
A person cannot appeal a decision by a Local Court Magistrate if 3 months has elapsed since the finalisation of the matter in the Local Court.
Conviction appeal procedure
Section 18 of the Crimes (Appeal & Review) Act 2001 states that an appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19. This means that an appeal will normally be determined by the Judge reading the transcript of the Local Court hearing and hearing the submissions of your lawyer and the DPP.
You are entitled to be provided with one free copy of the transcripts of evidence of the Local Court hearing.
An appeal is normally listed for mention about 2 to 3 weeks after the appeal is lodged. It is rare that the appellant’s legal representative or the DPP will have the transcript of the Local Court hearing before the first mention. If the transcript is available by the first court date then the appeal may be listed for hearing on a later court date. If the transcript is not available the matter will be adjourned so the parties can review the transcript before the appeal hearing date.
Ability to call fresh evidence and cross examine witnesses at the appeal
As indicated above most cases proceed based on the transcript of the evidence of the Local Court hearing. You need the leave of the District Court Judge if fresh evidence is allowed to be given.
Leave will only be given if the District Court is satisfied that it is in the interests of justice that the fresh evidence be given.
Obtaining an order that a person attend court to give evidence
The District Court may direct a person to attend and give evidence at the hearing of a conviction appeal if it is satisfied that:
- in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or
- in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.
These tests are sometimes difficult to establish, but certainly not impossible. The tests are certainly much easier to satisfy if you were unrepresented in the Local Court hearing. We are able to advise you on your chances of obtaining an order directing a witness to attend or to call fresh evidence at the appeal hearing.
We are also able to read the transcript of the Local Court hearing and give you an opinion on your chances of winning your appeal.
chances of winning your appeal.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.