This article was written by Trudie Cameron - Practice Director – Sydney
Trudie Cameron is the Practice Director of Criminal Law and is responsible for supervising and managing the New South Wales Criminal Law team in addition to her own caseload. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and commonwealth offences and appears on their behalf in...
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. Where this appeal is made in conjunction with a severity appeal it is known as an all grounds appeal.
A person who has been found guilty after a Local Court hearing has an automatic right of appeal to the District Court, provided the appeal is filed within 28 days of the finalisation of the matter in the Local Court.
If an appeal is filed more than 28 days after this date, but within three months of it, a person may still appeal but is required to seek and be granted the ‘leave’ (permission) of the District Court.
A person cannot appeal a decision by a Local Court Magistrate if more than three months has elapsed since the finalisation of the matter in the Local Court. This cannot be extended under any circumstances.
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 of the evidence in the Local Court proceedings. There is an exception provided by section 19 of the Crimes (Appeal & Review) Act 2001 in relation to hearing “fresh” or additional evidence. This means that an appeal will normally be determined by the Judge reading the transcript of the Local Court hearing, reviewing any exhibits and reading and/or hearing the submissions of the defence lawyer and a solicitor appearing on behalf of the DPP.
Additional evidence can only be relied on in certain circumstances and must be with the leave (permission) of the court before it will be admitted.
An appellant is entitled to receive one free copy of the transcripts of evidence of the Local Court hearing.
An appeal is normally listed for mention about two to three 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. If it is not available, the matter will be adjourned for a period of time and the appeal will be set down for hearing on a later court date.
Calling Fresh Evidence at the Appeal
As indicated above, most cases proceed based on the transcript of the evidence of the Local Court hearing. An appellant needs the leave of the District Court Judge if fresh evidence is sought to be relied on, or if they wish to cross-examine a witness about further evidence or matters. 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. Leave will not simply be granted because the defendant wants their lawyer (or a new lawyer) to cross-examine a witness again or because evidence was not relied on or used in the Local Court and the defendant wants to seek to rely on it now. There has to be just cause for an appeal to be allowed.
Orders that a Person Attend 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 can be difficult to satisfy. They are generally easier to satisfy if the person was unrepresented in the Local Court hearing. Legal advice can be provided in relation to a person’s prospects of success and/or the chances of obtaining an order directing a witness to attend or to call fresh evidence at the appeal hearing.
Legal advice can also be provided based on a transcript of the Local Court hearing, at which time an assessment of the matter’s prospects of success on appeal can be made.
What is Likely to Happen in Court?
When your appeal is listed for hearing, a solicitor will appear on behalf of the DPP. They will have a bundle of documents that will have been, or will be, provided to the court. The bundle will include a cover sheet that summarises the important details that the Judge will need to know. These details include:
- The Magistrate who made the order;
- The date of the hearing in the Local Court;
- The details of each offence and the maximum penalty each offence can attract;
- The transcript of those proceedings;
- Copies of any exhibits or evidence tendered;
- A transcript of the Magistrate’s judgment;
- The details of the finding in relation to each charge and the penalty imposed;
- If applicable, the length of time the defendant has spent in jail.
The DPP will give the defence a copy of the bundle. This will usually occur at the first or section mention and well in advance of the hearing. The legal representative should review the bundle to ensure nothing prejudicial is contained in it and to ensure that it is accurate and complete.
The DPP will tender the documents, usually at one of the previous mentions, and the Judge may have read the material. Written submissions may also be tendered on behalf of the prosecution or the person appealing.
Any applications to call fresh evidence may also be heard and, if successful, the fresh evidence may be adduced.
After all evidence has been reviewed, the legal representatives may make oral submissions. The court will then make a decision on the spot or reserve its decision to hand down at a later date.
Orders a District Court Judge can make
The District Court can either:
- Allow the appeal and quash the conviction imposed; or
- Dismiss the appeal.
If you require information on conviction appeals or any other legal matter please contact Armstrong Legal.