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Appealing Criminal Convictions In Australian Courts

Table of Contents

What Is A Criminal Conviction?

A criminal conviction is a guilty verdict following a criminal act being committed. This can either be within the magistrates court or supreme court. A criminal conviction is a permanent criminal record which will appear against your name. It is a serious matter and one which should not be taken lightly.

A criminal conviction can be grounds to prevent you from engaging with organisations such as schools, activities or clubs involving children, nursing homes or any other institutions involving vulnerable individuals. any trust within the community is shattered following criminal offending.

Why Are Criminal Convictions Appealed?

Criminal convictions are appealed for a number of reasons but mostly it is simply because people are not happy with the sentence imposed or the overall determination made. There is leave to appeal almost any sentence and it is an automatic right to be able to do so.

An appeal may be sought because of the following;

  1. Dissatisfaction with the outcome;
  2. Existence of perceived exceptional circumstances; and
  3. Perceived incorrect application of a legal principle which has resulted in a substantial miscarriage of justice.

It is a large call to apply for an appeal as it implies that the original sentence or decision is incorrect and therefore that original magistrate or judge has made a mistake.

The appeal process itself is a complicated and long process which should only be undertaken with expert legal advice. Not only do you need to understand your chances of success there can be serious consequences if an appeal is not successful.

What Is The Appeal Process?

If you are seeking to lodge an appeal then you will need to do so within 28 days of the original decision being made. If you file the appeal outside of the 28 days then it may not be heard by the appeal court. As with everything, exceptional circumstances exist but the general rule applies.

You will need to provide a copy of the appeal paperwork to the prosecution within 7 days of it being filed. Each time limit is critical as it could be the difference between it being heard or not. Notice of appeal is required so that a proper response can be prepared. It is important to get legal advice however as some matters may require leave to appeal in the first place. Different legal matters have different rules and it is important to know which ones apply.

Once the appeal has been filed and notice of appeal given, the matter will be heard and a decision will be made in the interests of justice.

What Happens If An Appeal Is Unsuccessful?

If an appeal is unsuccessful the court can decide to increase the sentence originally imposed. The court considers the evidence available, whether that be the original evidence or new evidence and the appeal considers whether a conviction should have been made.

The court of appeal will consider the offence and subsequent decision and then decide whether the prosecution has adequately made their case and satisfied the element. They will then consider whether the sentence given by the judge or magistrate is appropriate.

Can I Get Legal Aid Funding?

Legal aid will fund criminal matters but their funding is discretionary. They may decide not to fund for criminal appeal matters. You will likely require legal advice before seeking your matter be appealed and you should do this as soon as possible. You will need to make a legal aid funding application and see whether it is granted before you can access free assistance.

In order for your application to be granted, your legal matter or appeal must have merit and your lawyer must consider that there are grounds for its success. Sentence appeals in particular can be quite challenging.


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