Appealing from the District Court to the Supreme Court

There must be ground(s) of appeal in order to succeed in an appeal to the NSW supreme court of criminal appeal (CCA).

Grounds for a conviction appeal (appealing the guilty verdict) include:

1. Miscarriage of justice from legal representation.
   • Normally, you will be bound by the conduct of your lawyer(s). However, incompetence or carelessness by your legal representative can be grounds of an appeal on the basis that it has caused a miscarriage of justice.
2.  Error in exercising discretion to allow or exclude evidence in a trial.
   • Where the original court made a mistake as to the facts, failed to consider relevant information, took into account irrelevant considerations, or acted on an incorrect principle of law when exercising a discretion as to allowing or excluding evidence in a trial.
3. Fresh evidence.
   1. This is where the CCA court can conclude that a miscarriage of justice resulted in the below court from the absence of the fresh evidence at the District Court trial.
   2. A conviction can be ‘quashed’ if the fresh evidence you wish to use on the appeal is credible, was unavailable at the trial even after taking reasonable diligence in preparing the case, and where the CCA court can conclude that if the fresh evidence was in front of the jury, the jury would be likely to entertain a reasonable doubt as to the accused’ guilt or a significant possibility that the jury acting reasonably would have returned a verdict of not guilty.
4. The convictions are unreasonable and/or cannot be supported by the evidence.
   1. This is where the CCA court concludes that after assessing the evidence that was available to the jury, it wasn’t open to the jury to be satisfied beyond reasonable doubt that the accused is guilty.
5. Inconsistent verdicts.
   1. This is where the CCA court concludes that the guilty verdict(s) by the Jury or Judge to a charge in the District Court is inconsistent (an affront to logic and common sense) with the verdict of guilt to another charge against the accused. This only applies if there is nothing that really differentiates the two charges.
6. Misdirection in the summing up by the Judge to the Jury.
7. Procedural unfairness.

Grounds for a severity appeal (appealing the severity of a sentence) include:

1. The original sentence was ‘manifestly excessive’.
   • This is where a specific error cannot be shown, but the CCA can conclude that there must have been a misapplication of principle because the sentence imposed is so different from other sentences imposed in other cases that there must’ve been error.
2. A specific error was made by the sentencing Judge in any one or more of the following ways:
   1. The sentencing Judge failed to take into account material considerations.
   2. Factual mistakes: Mistakes as to the facts of the case were made by the sentencing Judge, which were material to the sentence, for example:
      • There was no evidence to support the findings of fact relied upon to impose the sentence; or
      • The evidence was all the one way; or
      • The Judge misdirected himself/herself
      • There was an error of fact that may have affected the imposed sentence.
   3. Irrelevant matters were taken into account by the sentencing Judge.
   4. Wrong principles of law were applied by the sentencing Judge.
3. Fresh evidence.
   • This is where the CCA allow the appeal on the basis that the fresh evidence:
     • Is of such significance that the sentencing Judge in the lower court would possibly have regarded it as having a real bearing on the sentence; and
     • The offender didn’t know of it or didn’t realise its significance; and
     • Where the offender’s lawyer(s) didn’t know about it at the time.

You have within 28-days from the day of conviction or sentence to lodge:

1. A Notice of Intention to Appeal; or
2. A Notice of Intention to apply for Leave to Appeal

This 28-day period can be extended by the court if it’s considered to be in the interest of justice.

Once the Notice of Intention to Appeal is filed, it will last for 12-months before it expires according to 3.1 Supreme Court (Criminal Appeal) Rules 2021. During the 12-month period, you are required to file the following if you wish to continue with the appeal:

1. Notice of Appeal; and
2. Grounds of appeal; and
3. Written submissions in support; and
4. A certificate affirming that the transcript of the remarks, summing up and transcripts of the trial or sentence are available; and
5. A statement outlining the lawyers appearing in the appeal for you.

The 12-month period before the Notice of Intention to Appeal expires can be extended by the court.

If the Notice of Appeal (or Notice of Application for Leave to Appeal) is not filed within 28-days, then the formal notice of appeal with the above listed documents are required to be filed within 3-months from the date of conviction or sentence.

If you wish to appeal to the CCA, you should first obtain a merit advice from an experienced appeals lawyer who will gather all the relevant documents for the case, including the transcripts and exhibits to formulate an assessment of the likelihood of success by outlining what if any grounds of appeal there are in the case.

If there are no grounds of appeal discovered from a merit advice, then it may not be worthwhile pursuing the appeal.

On the other hand, where grounds are found, it will be worthwhile pursuing it.

If appealing to the court of criminal appeal or the High Court, bail can be granted by the court if there are ‘special’ or ‘exceptional circumstances’. (Chew (1992) 66 ALJR 209).

The Supreme Court of Criminal Appeal (CCA) can do any one of the following things on an appeal:

For severity appeals:

• For appeals regarding the severity of a sentence, once error has been identified in the original sentence, the CCA court can then determine whether a lesser sentence is appropriate, and if so, it can impose the new lesser sentence by quashing the original one under section 6(3) of the Criminal Appeal Act 1912 (NSW).
• The CCA court is not required to re-sentence, although the CCA can impose either the same sentence or a greater sentence if it considers this to be the appropriate sentence if it finds error in the original sentence proceedings. However, if the CCA court considers the appropriate sentence to be greater than the original, it will normally inform you of this in advance to give you an opportunity to withdraw the appeal.
• For appeals regarding severity of a sentence, if an error occurred in the original court, the CCA court can remit the case back to the original court with directions on what should be done regarding the issue(s) found.
• Dismiss the appeal if no error occurred in the original court; or
• Dismiss the appeal where a miscarriage of justice is not found after being satisfied that an error occurred in the original court

For conviction appeals:

• The CCA court can quash the conviction and immediately acquit the accused person.
• If an error occurred in the original court, the CCA court can remit the case back to the original court for a retrial.
• Dismiss the appeal if no error occurred in the original court; or
• Dismiss the appeal where a miscarriage of justice is not found after being satisfied that an error occurred in the original court.

The CCA court can allow you to introduce fresh evidence if it was always available in the original court but not used, in the following circumstances:

• If appealing a guilty verdict (conviction appeal) in the CCA Court, a conviction can be quashed if the CCA Court concludes that the absence of the fresh evidence in the original court resulted in a miscarriage of justice. Fresh evidence can be accepted by the CCA Court if it is credible, was not available at the trial after taking reasonable diligence in preparing for trial, and where it can be said that if it was available for the jury to consider, the jury would likely entertain a reasonable doubt as to your guilt or a significant possibility that the jury acting reasonably would return a not guilty verdict.
• If appealing the severity of the sentence in the CCA Court, the CCA Court may allow the fresh evidence if it’s of enough significance that the Judge who originally imposed the sentence would have possibly regarded it as carrying a real bearing on the sentence, and if the you either didn’t know about it, or you didn’t realise the significance of it in circumstances your lawyer(s) didn’t know if existed at the time.

For instances of appealing the severity of a sentence from the District to the Supreme Court of Criminal Appeal (CCA) in NSW, you will generally not be allowed to introduce new evidence if the new evidence could have been used in the lower court you were sentenced in.

However, the CCA court can take into account any new evidence of events that have taken place after the original sentence, including evidence of the progress of rehabilitation since the original sentence, and any assistance an offender has provided to police or authorities after the original sentence. These things can reduce the original sentence on an appeal. (Betts v The Queen (2016)).