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Criminal Appeal

In criminal cases, the defendant holds the right to challenge a court’s ruling by appealing to a higher court. The appeal can contest either the verdict, the sentence, or both. While this page offers an overview of criminal appeals in Australia, it’s crucial to recognize that the appeal process differs between different states and territories.

Who can appeal?

If a court delivers a verdict after a jury trial or contested hearing, the defendant has the option to appeal against it. Similarly, a defendant can also challenge a sentence that a court has imposed.

If the prosecution thinks a sentence is too lenient, they can appeal against the sentence. The prosecution does not have the option of appealing against a verdict.

Process for making criminal appeals

To appeal a court decision in a criminal case, a party must submit a Notice of Appeal within the appeal period. Notice of Appeal forms are available for different courts, and they can be obtained from the respective court websites.

A complete Notice of Appeal should include all the specifics of the decision being appealed, along with the grounds of appeal that are being relied on. The grounds of appeal are the reasons cited by the appellant (the person filing the appeal) as to why the decision should be overturned.

Common appeal grounds

Some common criminal appeal grounds are:

  • That evidence was improperly admitted;
  • That there was insufficient evidence to support a finding of guilt;
  • That the sentence imposed was excessive;
  • That the sentence imposed was inadequate;
  • That evidence was improperly excluded;
  • That there was prosecutorial misconduct.

After the Notice of Appeal has been filed and served on the other party, the court will provide the parties with a date for the appeal to be heard. On this date, both parties will make submissions and the court will decide whether any of the grounds of appeal have been made out.

Time limit for criminal appeals

The time frame for filing criminal appeals varies among jurisdictions. Some states require the appeal to be filed within 28 days of the decision under appeal, while in others, it must be filed within a calendar month, excluding the decision date.

If a party wishes to appeal beyond the appeal period, they can request an extension of time. Such a request must be in writing and accompanied by an affidavit detailing the relevant circumstances. The court may approve an extension of time if it deems that there were valid reasons why the Notice of Appeal could not be filed within the stipulated time frame.

Which court do I appeal to?

Only a higher court has the authority to review a court’s decision. In cases where the decision was made by a magistrate, it can be appealed to a single judge of the Supreme Court or the District Court, depending on the state or territory.

If the decision was made by the District or Supreme Court, it can be appealed to the Court of Appeal, which is a division of the Supreme Court. The Court of Appeal is overseen by a panel of three to five judges.

If dissatisfied with the Court of Appeal’s decision, an appeal can be made to the High Court of Australia. However, the decision made by the High Court is final.

Appeals de novo

An appeal de novo is an appeal where a higher court reconsiders all the issues already put before the lower court that made the original decision. Such an appeal is not based on the argument that the lower court made an error of law but rather constitutes a fresh hearing. The higher court decides the matter without any reference to the original decision.

However, it’s worth noting that not all Australian states and territories allow de novo criminal appeals. For instance, in the Northern Territory, a criminal magistrate’s decision can be appealed to a single judge of the Supreme Court based on an error of law, but there is no provision for de novo appeals. In Victoria, de novo appeals were abolished in 2020. Prior to that, de novo appeals against magistrates’ decisions could be made to the County Court.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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