Appeal Lawyers Sydney

Severity Appeals

If you are unhappy about a court penalty, we can lodge a ‘severity appeal’ and push for a more lenient sentence.

1. Severity Appeals from the Local Court to the District Court

The general deadline for lodging a severity appeal is 28 days after the sentencing date.

However, that deadline may be extended to 3 months if there were good reasons for the delay eg you were ill and hospitalised or were otherwise unable to lodge the appeal within the general timeframe.

The appeal hearing will normally occur within a month of the appeal being filed.

At the hearing, the District Court Judge will read a ‘sentencing bundle’ tendered by the prosecution.

That bundle will have a cover sheet stating the charge/s, the penalty imposed by the Local Court, the applicable maximum penalties etc.

The bundle will also contain the Court Attendance Notice, various court papers and any reports and/or character references tendered in the Local Court.

After that bundle is read, your criminal lawyer can:

1. Call you to the witness stand and ask you questions, eg why you need to remain conviction-free or have your licence back; and/or

2. Make verbal submissions on your behalf; and/or

3. Tender any additional materials on your behalf eg additional character references, reports etc.

You don’t have to take the witness stand if you feel uncomfortable or nervous; your criminal lawyer can do the talking for you.

Also, some Judges like to hear from people on the witness stand whereas others prefer to hear from your criminal lawyer only.

It pays to know the Judge and what he or she likes.

The Judge will then decide whether to give you a lesser penalty or to confirm the Local Court penalty.

The good thing is that the Judge cannot give you a worse penalty unless he or she warns you that this is about to occur and you nevertheless continue with the appeal.

This is called a ‘Parker warning’.

Experienced criminal lawyers will always know when the Judge is giving a ‘Parker warning’ and will immediately obtain your instructions to withdraw the appeal.

So in practice, you can only get the same sentence or a better sentence.

2. Severity Appeals from the District Court to the Supreme Court

If you feel that the sentence imposed by the District Court was too severe, you should obtain advice from experienced criminal lawyers about your prospects of successfully appealing against the sentence.

District Court sentences can be appealed the the New South Wales Court of Criminal Appeal (or the NSWCCA) which is a division of the Supreme Court.

These appeals can be successful if the NSWCCA is persuaded that the sentence is manifestly excessive, in other words way too harsh.

A Notice of Intention to Appeal must be filed within 28 days of the District Court sentencing.

A Notice of Appeal will have to be filed within 6 months thereafter and the NSWCCA will give a timetable for the filing of Grounds of Appeal by the Appellant (you) and Written Submissions by the Appellant and Respondent (the other side).

The matter will ultimately be set down for hearing at which time verbal submissions can be made by both parties and the NSWCCA will either:

1. Confirm the District Court sentence, or
2. Impose a lesser sentence, or
3. Impose a greater sentence.

It is vital to seek advice from criminal lawyers who are experienced in NSWCCA appeals before decising whether or not to appeal your matter.

Sydney Criminal Lawyers® is vastly experienced and highly successful in representing clients in NSWCCA Severity Appeals.

We can accurately advise you of your prospects and provide you with outstanding representation throughout the appeal process.

Conviction Appeals

Many clients come to Sydney Criminal Lawyers after receiving unsatisfactory representation by other criminal lawyers or representing themselves, and consequently being found guilty in the Local, District or Supreme Court.

Alternatively, they feel that the Magistrate or Judge made errors of judgment; whether in finding guilt or applying the law.

If you were wrongly found guilty for whatever reason, a ‘conviction appeal’ can be lodged to overturn that finding.

If you are considering a conviction appeal, Sydney Criminal Lawyers® can provide you with accurate advice about your chances of winning and outstanding representation throughout the appeal process.

1. Conviction Appeals from the Local Court to the District Court

The general deadline for lodging a conviction appeal is 28 days after finalisation of the Local Court matter.

However, that deadline may be extended to 3 months if there were good reasons for the delay eg you were ill and hospitalised or were otherwise unable to lodge the appeal within the general timeframe.

The matter will then be listed for a ‘Mention’ (a short court date) for the ‘transcript of the Local Court hearing’ to be ordered and prepared.

The ‘transcript’ is the oral evidence given by witnesses during the Local Court proceedings and the Magistrate’s judgement.

That document can take up to 8 weeks to prepare.

Once the transcript is ready, the appeal will be listed for hearing before a District Court Judge.

At the hearing, the Judge will read the transcript and review any ‘exhibits’; which are items tendered during the Local Court hearing such as photos, maps, police statements, phone records, bank statements, weapons, clothing, police interviews etc.

The Judge will then hear verbal submissions from the lawyers, after which the Judge will either:

– uphold the appeal and quash the finding of guilt, or
– refuse the appeal and confirm the finding of guilt.

Although conviction appeals are normally determined on the transcript, exhibits and verbal submissions only, there are certain circumstances where permission can be requested to use extra evidence; eg where fresh information comes to light after the finalisation of the Local Court proceedings.

Also, if an ‘all grounds appeal’ has been lodged – which is an appeal against both conviction and sentence – the Judge can impose a more lenient sentence despite confirming the finding of guilt.

For example, the Judge can quash the criminal conviction and impose a ‘section 10 dismissal or conditional release order‘ instead; which is a finding of guilt without a criminal conviction.

2. Conviction Appeals from the District Court to the Supreme Court

A range of scenarios can properly ground a conviction appeal from the District Court to the Supreme Court, or ‘NSWCCA’.

These may include:

– where the District Court Judge ‘misdirected’ the jury about an aspect of the law;
– where the Judge ‘admitted evidence’ that should have been excluded;
– where the Judge refused to admit evidence that should have been admitted;
– where the Jury reached a verdict that was not supported by the evidence; or
– where the incompetence of the Accused’s legal representative/s caused a miscarriage of justice.

The first step in the appeal process is to lodge a Notice of Intention to Appeal within 28 days.

The next step is to file a Notice of Appeal within 6 months thereafter.

The matter will receive a court date at which time a timetable will be set for filing Grounds of Appeal and Written Submissions.

The Grounds of Appeal and Written Submissions will be based upon the ‘trial transcript’, ‘exhibits’ and applicable laws.

The ‘trial transcript’ contains the oral evidence and judgments given during the District Court trial.

The ‘exhibits’ are the items tendered in court, such as photos, maps, police statements, phone records, bank statements, weapons, clothing, police interviews etc.

Your criminal lawyer will carefully consider the transcript and exhibits in light of relevant case-law and legislation, before preparing the Grounds of Appeal and Written Submissions.

The appeal will ultimately reach a hearing before Justices of the NSWCCA who will consider all materials, hear verbal submissions and decide whether to confirm or quash the conviction.

3. High Court Appeals

The High Court is Australia’s highest court and is comprised of 7 judges called ‘Justices’.

High Court Appeals are normally based upon complex questions of law and legal doctrine.

An applicant must initially seek ‘special leave’ to appeal to the High Court (ie permission). There is no ‘right of appeal’.

A ‘special leave application’ can be complex in itself; containing a wide range of materials and involving a significant amount of work.

If that application is successful, a hearing will ultimately occur before one or more High Court Justices.

The number of Justices will often depend on the nature, complexity and importance of the legal issues involved.

The rules concerning High Court Appeals are strict and the matters must be treated with utmost seriousness, care and diligence.

This an area where only highly-specialised and properly-experienced criminal lawyers should be instructed.

Sydney Criminal Lawyers® has conducted numerous important and successful High Court Appeals over the years.

Our criminal lawyers are on the High Court roll and can be instructed in the most serious and complex criminal matters.

Appeal against suspension or demerit points

A well-prepared and persuasively-presented driver licence appeal can result in:

– your suspension being overturned,
– you getting your licence back, or
– demerit points not being recorded against you.

You normally only get one chance at a driver licence appeal.

It is therefore important to engage traffic lawyers with a proven track record in driver licence appeals.

Sydney Criminal Lawyers® has an outstanding track record in appealing traffic matters, including:

– automatic suspensions by police or RMS (former RTA),
– demerit point suspensions, and
– the imposition of demerit points generally.

We are also vastly experienced in defending driving charges when our clients wish to plead ‘not guilty’.

Call our experienced traffic lawyers today on (02) 9261 8881 for a free first appointment.

When you can Appeal

• You can appeal against a driver licence suspension in the following circumstances:
• You are given an ‘on the spot’ police suspension for a major traffic offences such as drink driving (mid or high range), speeding by over 45kph, reckless driving, dangerous diving etc;
• You are given an RMS (former RTA) suspension for speeding by over 30kph or 45kph;
• You are a P plater and are given a demerit points suspension.;
• You are a full licence holder and plead ‘not guilty’ to the offence causing your demerit points suspension; and
• You are a full licence holder and wish to plead ‘guilty’ to the offence causing your demerit point suspension, but feel that a licence suspension would be too harsh. In such cases, your traffic lawyer can ask the court for a non conviction order (no conviction) and, if successful, no demerit points will be recorded against you.

Appeals must be filed within 28 days of receiving the RMS notification letter or, if a letter was not received, within 28 days of becoming aware of the suspension.

Section 4 Annulment Applications | I did not attend court

Section 4 Annulment Applications are used to overturn (‘annul’) convictions and / or sentences imposed by the Local Court in a defendant’s absence.

How do I undertake a Section 4 Annulment Application?

The first step is to fill out an ‘Application to the Local Court’ which is available from any Local Court Registry or can be downloaded from the Local Court website.

The first page of the application will require your details (the applicant) and those of the police officer in charge of your case (the respondent).

The officer’s rank, name and station will be contained on the Court Attendance Notice.

The second page will ask for ‘Order/s Sought’.

You (or your criminal lawyer) should request that ‘The order/s made by the Local Court be annuled’.

That request should be followed by your name, the date of the orders, the court in which the orders were made (eg Downing Centre Local Court) and the type of case (eg common assault, mid range drink driving, AVO etc).

The second page will then ask for the ‘Grounds for Application’.

You (or your criminal lawyer) should state the reasons for making the application.

The first ground should be: ‘That the orders were made in my absence’.

The following grounds should state why you did not attend, for example:

– ‘I was not aware of the Local Court proceedings until after they were finalised’, or
– ‘I was unable to attend court due to illness, accident, personal tragedy or other circumstances’, or
– ‘It is in the interests of justice to annul the orders because of the following circumstances: ……. ‘.

The application should then be filed in court. A filing fee will apply.

Your matter will then be given a ‘hearing date’ in the court where you were convicted or sentenced.

Supporting materials such as medical certificates, evidence of change of address etc should be brought to the hearing.

At the hearing, the Magistrate will review the application and any supporting materials, then hear from you (or your criminal lawyer) and ultimately decide whether or not to reverse the conviction or sentence.

What will the court consider?

The Magistrate will consider:
1. The grounds set out in the application form,
2. Any supporting materials,
3. Verbal submissions from both parties, and
4. Any other circumstances such as delay in bringing the application.

He or she will then decide whether it is in the ‘interests of justice’ to overturn the previous orders.

What happens if the application is successful?

Once successful, the next step is to decide how to move forward:

1. Where there was no previous plea of ‘guilty’
If you didn’t previously plead guilty in court, the Magistrate will ask whether you wish to plead guilty or not guilty.

If you plead guilty, the matter will proceed to a sentencing hearing that day or on a later date.

If you plead not guilty, the matter will proceed as normal towards a defended hearing; where witnesses will attend and the court will decide whether you are guilty or not guilty.

2. Where there was a previous plea of ‘guilty’
If you previously pleaded guilty but were sentenced in your absence on a later date, you will be re-sentenced and a different penalty can be imposed.

Is there a time limit?

A Section 4 Annulment Application can be filed up to 2 years after your conviction.

Crown Inadequacy Appeals | Appeals by police and DPP

Prosecutors can appeal decisions made by the Local Court. Those appeals are normally made to the District Court.

Prosecutors can also appeal certain decisions made by the District Court to the Supreme Court of NSW (the ‘NSWCCA’) and to the High Court of Australia.

The decision about whether to appeal a particular case will normally be made by the Office of the Director of Public Prosecutions; or ‘DPP’.

What will the DPP consider when deciding whether to appeal?

For appeals against sentence, DPP Guideline 29 of 2007 requires prosecutors to consider the following matters:

(i) whether the court made a material error of law or fact, misunderstood or misapplied proper sentencing principles, or wrongly assessed or omitted to consider some salient feature of the evidence, apparent from the remarks on sentence;

(ii) manifest inadequacy of the sentence which may imply an error of principle by the sentencer;

(iii) the range of sentences (having regard to official statistics and comparable cases) legitimately open to the sentencer on the facts;

(iv) the conduct of the proceedings at first instance, including the prosecution’s opportunity to be heard and the conduct of the case;

(v) the element of double jeopardy involved in a prosecution/Crown appeal and its likely effect on the outcome (the probable imposition of a lesser sentence than was appropriate at first instance);

(vi) the appeal court’s residual discretion not to intervene, even if the sentence is considered too lenient; and/or

(vii) whether the appeal is considered likely to succeed.

The Guideline also says that prosecutors should bare in mind that:

• prosecution/Crown appeals are and ought to be rare, as an exception to the general conduct of the administration of criminal justice they should be brought to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic approaches to be corrected and to correct sentences that are so disproportionate to the seriousness of the crime as to lead to a loss of confidence in the administration of criminal justice;
• the appellate court will intervene only where it is clear that the sentencer has made a material error of fact or law or has imposed a sentence that is manifestly inadequate (which in the exercise of discretion may still not be sufficient cause);
• the appellate court will take into account the advantages enjoyed by the sentencer which are denied to it;
• the appellate court will not be concerned whether or not it would have found the facts differently, but will consider whether or not it was open to the sentencer to find the facts as he or she did;
• a respondent to a prosecution/Crown appeal suffers a species of double jeopardy which is undesirable;
• apparent leniency or inadequacy alone may not be enough to justify appellate correction;
• scope must remain for the exercise of mercy by the primary sentencer;
• the range of appropriate sentences with respect to a particular offence is a matter on which reasonable minds may differ; and
• if an appeal is to be instituted, it must be done promptly.

What should I do if I receive a Notice of Crown Appeal?

If you receive a Notice of Crown Appeal, you should immediately contact an experienced criminal lawyer who can:

– Review your case and write a letter to the DPP requesting that the appeal be ‘abandoned’ (ie cancelled) because it does not fall within Guideline 29 above;

or if the DPP nevertheless go ahead with the appeal:

– Represent you at the appeal hearing.

Sydney Criminal Lawyers® are experts in defending Crown Appeals.

We will fight to have the appeal abandoned so that you can get on with your life.

If the DPP refuse, we will use our expertise and vast experience in Crown Appeals to defend you in court.

Call us today on (02) 9261 8881 for a free first appointment with an experienced criminal defence lawyer.