Criminal Appeals Process: What to Do When Your Case Doesn't Go to Plan
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Introduction
When a criminal case yields an unfavourable outcome, understanding your appeal options becomes critical. This guide outlines the appeals process in Australia’s criminal justice system, explaining who can appeal, on what grounds, and the practical steps involved.
Understanding the Right to Appeal
In Australia, the right to appeal is not automatic. Appeals are not simply a chance to have your case heard again because you’re unhappy with the result. Instead, they provide an opportunity to correct legal errors or miscarriages of justice that occurred during your original proceedings.
Grounds for Criminal Appeals
Appeals must be based on specific legal grounds, typically including:
For Conviction Appeals:
- Legal errors by the judge in admitting evidence or instructing the jury
- Unreasonable verdict that no reasonable jury could have reached on the evidence
- Fresh evidence that was not available at trial but could have affected the outcome
- Miscarriage of justice including misconduct by jurors, prosecutors, or witnesses
For Sentence Appeals:
- Manifest excess – the sentence is unreasonably harsh compared to similar cases
- Manifest inadequacy (prosecution appeals) – the sentence is unreasonably lenient
- Failure to consider relevant factors or consideration of irrelevant factors
- Errors in applying sentencing principles or legislative requirements
Time Limits for Filing Appeals
Strict time limits apply for filing appeals in criminal matters:
- Magistrates Court decisions: Generally 28 days from sentence or conviction
- District/County Court and Supreme Court decisions: Typically 28-30 days depending on jurisdiction
- High Court appeals: Special leave applications must be filed within 28 days
Missing these deadlines requires an application for extension of time, which courts grant only in exceptional circumstances with good reasons for the delay.
The Appeals Process: Step by Step
1. Obtaining Legal Advice
First, consult with a criminal lawyer experienced in appeals to assess:
- Whether valid grounds exist
- Prospects of success
- Potential outcomes
- Costs involved
2. Filing the Appeal Notice
Your legal representative will prepare and file:
- Notice of Appeal or Application for Leave to Appeal
- Grounds of Appeal clearly stating the alleged errors
- Supporting documentation from the original proceedings
3. Obtaining the Transcript and Evidence
Appeals require a complete record of the original proceedings:
- Court transcripts
- Exhibits
- Judge’s reasons for decision or sentencing remarks
4. Preparing Written Submissions
Detailed legal arguments must be prepared addressing:
- Each ground of appeal
- Relevant case law and legislation
- How the alleged errors affected the outcome
5. Hearing the Appeal
Appeals typically involve:
- Limited or no new witnesses (except in special circumstances)
- Focus on legal argument rather than factual disputes
- Much shorter proceedings than the original trial
6. Appeal Outcomes
The appeals court may:
- Dismiss the appeal – upholding the original decision
- Allow the appeal and:
- Order a retrial
- Substitute a verdict of acquittal
- Modify the sentence
- Remit the matter back to the original court with directions
Different Appeal Pathways
Magistrates Court Appeals
Appeals from Magistrates Court decisions typically go to:
- The District Court or County Court (depending on state/territory)
- Some jurisdictions allow appeals to the Supreme Court on questions of law only
These appeals often involve a complete rehearing of evidence.
District/County and Supreme Court Appeals
Appeals from these courts generally go to:
- The Court of Appeal or Court of Criminal Appeal (state/territory Supreme Court)
- Require “leave to appeal” (permission) except for certain serious matters
High Court Appeals
The final appeal option is the High Court of Australia:
- Requires “special leave to appeal”
- Granted only for cases involving important questions of law or public importance
- Extremely selective (most applications are refused)
Practical Considerations
Legal Representation
While self-representation is possible, appeals involve complex legal principles. Legal Aid may be available for appeals with reasonable prospects of success.
Bail Pending Appeal
Convicted persons must usually begin serving their sentence even while appealing, but may apply for:
- Bail pending appeal – granted only with strong grounds and exceptional circumstances
- Stay of proceedings – temporarily halting the effect of court orders
Appeal Books and Materials
Appeals require preparation of specific documents including:
- Appeal book containing all relevant court materials
- Chronology of proceedings
- Extract of relevant legislation and case law
Common Misconceptions About Appeals
“I can appeal because my lawyer didn’t do a good job”
Claims of inadequate representation rarely succeed unless you can demonstrate specific errors that substantially affected the outcome.
“I can appeal because new evidence has emerged”
Fresh evidence appeals succeed only when the evidence:
- Could not have been found with reasonable diligence before the trial
- Is compelling and credible
- Would likely have affected the verdict
“The appeal court will completely rehear my case”
Most appeals focus on legal errors rather than re-evaluating factual findings or witness credibility.
Conclusion
The appeals process provides a crucial safeguard against miscarriages of justice, but operates within strict parameters. Understanding these limitations and acting promptly with proper legal guidance maximises your chances of a successful appeal when your criminal case doesn’t go to plan.
If you’re considering an appeal, seek specialised legal advice immediately to ensure time limits are met and grounds properly identified. While appeals can be complex and challenging, they offer an important opportunity to correct genuine legal errors in appropriate cases.
Our Criminal lawyers can help you today. Call (02) 8084 9929 to arrange a free initial consultation with a Criminal lawyer.
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