If you believe the local court outcome was either unfair or wrong, you have the right to lodge an appeal to the District Court of NSW under section 11 Crimes (Appeals and Review) Act 2001 (NSW).
A successful appeal to the District Court can result in the local court Magistrate’s orders being set aside, which means an acquittal by quashing the guilty verdict and dismissing the charge(s) or a lesser penalty on sentence, including a section 10 dismissal (non-conviction).
There are 3 kinds of appeals to the District Court:
- Conviction appeal: where you appeal the local court Magistrate’s decision to find you guilty.
- Severity appeal: where you appeal the severity of the sentence imposed by the local court Magistrate.
- All grounds appeal: where you lodge both a conviction appeal and severity appeal.
The appeal will be a rehearing of all the evidence that was already given in the local court.
An appeal to the District Court is not to determine whether the Magistrate got it wrong, instead, the whole evidence that was given in the local court will be reviewed by a fresh pair of eyes by a District Court Judge who will come to his/her own conclusion.
For more information on appeals to the District Court, see below our frequently asked questions.
What is the time limit and process of lodging a District Court appeal?
If you wish to appeal against the sentence imposed by the local court Magistrate, you have within 28-days from your sentence date to lodge a severity appeal.
If you wish to appeal against the local court Magistrate’s finding of guilt, you have within 28-days from your sentence date to lodge a conviction appeal.
You will need permission from the District Court to make a conviction appeal (by applying for leave to appeal conviction within 28-days from your sentence date) if:
- You have been convicted in the local court in your absence because you failed to appear; or
- You pleaded guilty in the local court, but now wish to plead not guilty.
What happens if your 28-day period to lodge an appeal expires?
If you fail to lodge an appeal within the 28-day period from date of sentence, you may still lodge an appeal within 3-months after the sentence date in which case you will need to apply for leave to appeal (sentence or conviction appeal). Here you will need to make an application for leave to appeal.
Leave to appeal will normally be granted by the District Court if it would be in the interest of justice. You will need to show compelling reasons for why you failed to lodge an appeal within the required time frame. It is recommended to prepare an affidavit to outline your explanation.
If leave to appeal is granted, the District Court Judge may immediately proceed to hear the appeal or adjourn it to a suitable date.
Can you apply for a bail application on appeal?
Whether it is a severity appeal or conviction appeal (or all grounds appeal), you can make a bail application immediately after you are sentenced in the Local Court.
After lodging an appeal in the local court registry immediately after sentence, you may then apply for appeals bail the same day in the same Local Court.
You may also apply for bail in the District Court on or after the first court date in the District Court for the appeal.
Appeals bail will likely be granted if there is a reasonably arguable prospect of success on the appeal. However, to grant bail, the court will also need to be satisfied that there is no unacceptable risk (and in a case it is a show cause offence, that cause has been shown that continued detention is not justified).
What are the possible outcomes of a District Court appeal?
For conviction appeals where you appeal the finding of guilt, a District Court Judge can:
- Set aside the guilty verdict and conviction, acquit you and dismiss the charge(s); or
- If the appeal requires leave from the District Court, a District Court Judge can set aside the finding of guilt and conviction, and remit the case back to the local court to be redetermined in accordance with the District Court’s directions; or
- Dismiss the appeal.
For severity appeals where you are appealing the severity of the sentence, a District Court Judge can:
- Set aside the original sentence and impose a more lenient sentence; or
- Set aside the original sentence and impose a heavier sentence. If the court intends to do this, the Judge will first give a warning to give you an opportunity to withdraw your appeal so that the sentence remains the same; or
- Dismiss the appeal.
Can you use new or fresh evidence on a District Court appeal?
A severity appeal or conviction appeal normally involves the District Court Judge reviewing all the local court evidence in order to make his/her own conclusion. This is usually a review of all the evidence tendered and evidence given which will be reflected on an appeal in a transcript and exhibits. This is called a rehearing of the case.
If the appeal is against the severity of the sentence that was imposed, you may introduce new or fresh evidence for the Judge to take into account in your favour under section 17 Crimes (Appeal and Review) Act 2001 (NSW).
If the appeal is against a guilty verdict (conviction appeal), you cannot introduce new or fresh evidence on the appeal unless the Judge grants leave to introduce fresh evidence under section 18 Crimes (Appeal and Review) Act 2001 (NSW).
A District Court Judge will only grant leave for you to introduce fresh evidence on a conviction appeal if satisfied that it would be in the interests of justice.
It is much easier to introduce new or fresh evidence on an appeal in the District Court than an appeal in the NSW Supreme Court of Criminal Appeal (CCA).
However, in a conviction appeal, the District Court will only direct a person to attend to give evidence in the witness box if satisfied that:
- There is substantial reasons why, in the interest of justice, the person(s) should attend to give evidence; or
- If the offence is an offence of violence against the alleged victim, the court will only grant leave to direct the alleged victim to attend court to give evidence if there are special reasons why, in the interest of justice.
If you intend to ask the court to direct a person attend court to give evidence in the witness box, you are required to give notice of this to the prosecution first.