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Court of Criminal Appeal

The Supreme Court has two separate Appeal Courts – the Court of Criminal Appeal and Court of Appeal. The Court of Criminal Appeal is the state’s highest court for criminal matters and is a special division within the Supreme Court. The Court of Criminal Appeal hears appeals from decisions of the District Court or the Supreme Court.

The Court of Criminal Appeal can determine different types of appeal. These include:

    1. a challenge to a conviction involving a question of law;
    2. a challenge to a conviction involving questions of fact alone, or mixed questions of fact and law (provided leave is granted); and
    3. a challenge to the severity or adequacy of the sentence (provided leave is granted).

Appeals to the Court of Criminal Appeal can be made in relation to persons who have been convicted following a trial in the District Court or in the Supreme Court. Appeals can also be brought in relation to sentences. Appeals can also be made by the Office of the Director of Public Prosecution.

Grounds Of Appeal

Appeals must list one or more grounds of appeal. The grounds of appeal are the errors or issues upon which the appeal is founded. Some common grounds of appeal are:

  • the trial Judge did not direct the jury or sum up the evidence in the trial appropriately;
  • evidence was ruled to be admissible and led before the jury when it should not have been;
  • the conduct of the Crown prosecutor or the conduct of the defence lawyer or a particular element of the way in which the trial was conducted resulted in a miscarriage of justice; and
  • that the sentence was manifestly excessive or, in the case of a Crown appeal, manifestly inadequate.

If the Court of Criminal Appeal allows an appeal, it has the power to set aside a conviction or sentence, based on the nature of the appeal, and to make further orders. In certain circumstances, the court may quash a conviction and enter an acquittal, may order a re-trial, re-sentence an offender, or order that the offender return to the original court to be resentenced according to law.

The Court of Criminal Appeal doesn’t have the power to make a costs order against a person who brings an unsuccessful appeal against their conviction or sentence. This means that if you lose your appeal, there is no risk that you will have to pay the prosecution’s costs of the appeal.

Bail Pending An Appeal

After a person is convicted and sentenced in the District or Supreme Court it is possible to apply for bail pending the determination of an appeal. Obtaining bail pending the hearing of an appeal in the Court of Criminal Appeal is difficult, but not impossible. The legislation states that the court cannot grant bail in such circumstances unless it is satisfied that special or exceptional circumstances exist, justifying the granting of bail.

In the past, Armstrong Legal has been successful in satisfying the court that special or exceptional circumstances exist and obtained bail for previous clients, pending the hearing of their appeal to the Court of Criminal Appeal.

The Process Of Appealing To The Court Of Criminal Appeal

In order to appeal to the Court of Criminal Appeal, a Notice of Intention to Appeal must be filed within 28 days of the date the order was made. If the Notice of Intention to Appeal is not filed within this time, the court may exercise some discretion and extend the time under which the Notice of Intention is required to be filed with the court, so as not to deny an appellant their opportunity to appeal.

A person who does not file a Notice of Intention to Appeal within this timeframe will be required to file a Notice of Application for Extension of Time for Notice of Intention to Appeal. After a Notice of Intention to Appeal is filed, a Notice of Appeal must the filed within six months.

The Notice of Appeal is the formal appeal document which lists the grounds upon which the appeal ought to be granted. If the appeal is not lodged within six months the applicant must seek an extension from the Registrar of the Court of Criminal Appeal.

When filing the Notice of Appeal the applicant must also file the following documents:

  1. Grounds of appeal
  2. Submissions on appeal
  3. Certificate under rule 23C of the Criminal Appeal Rules.

The rule 23C certificate is a signed certification that the transcripts and exhibits are available from the District or Supreme Courts. The Office of the Director of Public Prosecutions will also be required to file submissions in response. Appeal books which contain the above as well as the transcripts and evidence pertaining to the original matter must also be filed.

Appeal Hearings In The Court Of Criminal Appeal

Appeals are generally determined by three judges. Where there are significant legal issues to decide, five judges may hear an appeal.  If the judges disagree, then the appeal is decided by a majority.

The judges hearing an appeal will have all the appeal documents prior to the hearing of the appeal. This includes the transcripts of the trial or sentence, any relevant exhibits and the submissions by both the prosecution and defence. As outlined above, these documents are prepared by the respective legal representatives and organised into appeal books. There are strict rules on how the appeal books are presented and, unless they are prepared correctly, they are likely to be rejected by the court. The judges determining the appeal will generally have read the material before the hearing date and will be familiar with the issues.

Normally, both parties are represented by barristers who specialise in appellate work, instructed by solicitors. The judges will give both legal teams opportunities to make oral submissions to expand on their written submissions. It is common for the judges to thoroughly question legal representatives and require them to explain or justify their legal position.

It is important to select a barrister and instructing solicitor carefully. Appellants need a team that prepares thoroughly and is experienced in arguing matters before the Court of Criminal Appeal. Armstrong Legal regularly briefs barristers who are highly regarded by their colleagues and the judges.

Judges sometimes deliver their judgments immediately. Often they reserve their decision and adjourn the matter to another date to hand down the judgment.

If you would like information on the Court of Criminal Appeal or any other legal matter, please contact us.

Trudie Cameron

This article was written by Trudie Cameron

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. She practices in both NSW and the ACT. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and...

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