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This article was written by Chris Townsend - Senior Associate - Perth

Chris Townsend is a criminal lawyer who regularly represents clients in the Magistrates, District, Supreme and Court of Appeal of Western Australia. Chris holds a Bachelor of Arts (Psychology), Juris Doctor, Graduate Diploma in Legal Practice, and Master of Laws specialising in Criminal Practice.  He was admitted to practice in Western Australia in 2013, and thereafter as a solicitor to...

Appealing A Sentence or Conviction (WA)


If you have been convicted of a criminal offence and/or sentenced in the Magistrates Court, you have a right to appeal against the conviction, against the sentence or both. In order to do so, you must commence an appeal within 28 days of the date of the decision you are appealing. This article outlines the process for appealing a sentence or conviction imposed in the Magistrate’s Court in Western Australia.

The right to appeal against a conviction or sentence in the Magistrate’s Court is found in the Criminal Appeals Act 2004 and allows any aggrieved party to appeal against the conviction (or acquittal), or against the sentence imposed by a Magistrate to the Supreme Court. A single judge of the Supreme Court will hear the appeal and determine whether an error has occurred.

In order to pursue an appeal of this nature, an appellant must be granted leave under section 8(1)(a)(iii) of the Act. Leave can only be granted where the ground of appeal has a reasonable (meaning real, rational and logical) prospect of success.

Appealing a Conviction

An appeal against conviction can be commenced by an individual who is found guilty of an offence or offences and is aggrieved by that conviction. The prosecution can also appeal an acquittal.

Common issues that may arise after a trial and lead to an appeal are:

  1. The failure of a magistrate to admit evidence;
  2. The magistrate failing to exclude evidence that was otherwise inadmissible;
  3. The magistrate applying the law incorrectly; or
  4. In all the circumstances the verdict was unreasonable given the evidence that was adduced.

Each case turns on its own facts, and the above grounds (and many others) may or not be appropriate.

Appealing a Sentence

An appeal against a sentence can be commenced by an individual on the basis the sentence was imposed in error. That error may be an express error or an implied error.

An express error occurs where the magistrate wrongly applied the law, misstated the facts, or otherwise made a finding that was incorrect in all the circumstances.

An implied error on the other hand is one that can be inferred from the outcome. This is commonly referred to as ‘manifest excess’, and refers to an outcome that was excessive given the circumstances of the offending, and personal circumstances attributed to the offender.

Process of appealing a conviction or sentence in the Magistrate’s Court

In the event you wish to commence an appeal against a conviction or sentence ordered by a magistrate, you will need to file an appeal notice in the Supreme Court. That appeal notice will need to be filed within 28 days of the decision, failing which you will need to file an affidavit explaining why that was not done within the time limit.

Appeal Notice

The Appeal Notice sets out all the details of the decision you are appealing. If you are appealing against a conviction you would set out the conviction/s you are appealing. If you are appealing against the sentence, you would set out the sentencing orders you are appealing against.

You must also set out the grounds of the appeal. That is to say, what error/s do you say occurred during your trial and/or sentence.

After filing the Appeal Notice you will need to serve it on the prosecution and file an affidavit to say you have done so.

Transcript/Prosecution Notice

After filing the Appeal Notice you will need to obtain the transcript of proceedings and Prosecution Notice/s, and file them with the Supreme Court. It is important to note that these documents can sometimes take in excess of 14 days, so you should apply for them as soon as you are aware you are likely to commence an appeal.

Interim Orders

After the above documents have been filed, you will receive orders from the registrar of the Supreme Court. These orders will require you to file written submissions setting out the basis of your appeal. The orders will also require the other party to file submissions in response.

These interim orders will also require you to file an ‘Entry for Hearing’ which is effectively a request for a hearing date, which will require you to set out dates you are unavailable to attend court for the appeal hearing.

Submissions

You will be required to file written submissions prior to the hearing of your appeal. These submissions set out the grounds you are appealing on, and the relevant facts and law that support your argument.

It is important to be concise, but also ensure that all relevant details are in the submissions in order to allow the other party to reply, but also to allow the court to understand what your complaint is with respect to your conviction or sentence.

Hearing

After filing submissions both parties will attend the court before a judge of the Supreme Court. They will hear oral submissions about the grounds of appeal raised. Often, His/Her Honour will ask questions about the content of the written submissions, and you will need to be prepared to answer those questions.

At the conclusion of the hearing, the judge may give their decision, or adjourn to another date to do so. The judge has the power to uphold your appeal or dismiss the appeal.

Appeal Upheld

In the event that your conviction appeal is upheld the judge can send the matter back to the Magistrates Court for a new trial. Alternatively, the judge can substitute your conviction with a finding of acquittal.

In the event your sentence appeal is upheld, the judge will generally resentence you.

Appeal Dismissed

In the event your conviction or sentence appeal is dismissed, the original conviction/sentence as found or imposed by the Magistrate will remain.

If you require legal advice or representation in relation to appealing a conviction or sentence or in any other legal matter please contact Armstrong Legal. 

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