NSW Court of Criminal Appeal (Complete Guide 2024)
What is the NSW Court of Criminal Appeal?
The NSWCCA is the highest court in NSW for criminal matters. It is a division of the Supreme Court of NSW. It handles appeals against convictions and sentences handed down in lower courts, such as the District Court and the Supreme Court (in its original jurisdiction).
Where is the NSWCCA?
The NSWCCA is located at 184 Phillip St, Sydney NSW 2000.
What types of appeals are available in the NSWCCA?
There are three types of appeals to the NSWCCA:
Conviction appeals - an appeal by a convicted person about the fact that they were found guilty.
Sentence appeals - an appeal by a person who has been sentenced regarding the severity of that sentence.
Crown sentence appeal - an appeal by the Crown on the basis that a sentence imposed on a convicted person was “manifestly inadequate.” (i.e. not sufficient or appropriate).
Who can appeal to the NSWCCA?
Appeals to the NSWCCA can be lodged by people who were convicted in the District or Supreme Courts. A person can lodge either a conviction appeal or a sentence appeal. The Director of Public Prosecutions can also lodge an appeal to the NSWCCA on the basis that a sentence imposed upon a person in the District or Supreme Court was “manifestly inadequate”.
What are the grounds for appeal to the NSWCCA?
The notice of appeal must be filed with the grounds of the appeal. The grounds are the particular errors identified that the appellant asks the court to determine. The grounds of appeal are individual to each matter.
What if the appeal is successful?
If the appeal is successful, the NSWCCA can overturn a conviction or sentence and issue further orders. This could involve acquitting the accused, ordering a retrial, resentencing, or referring the case back to the original court for resentencing.
What if the appeal is unsuccessful?
If your appeal to the NSWCCA is unsuccessful, the original decision of the lower court will stand. This means your conviction or sentence will remain as is. Importantly, you won't be required to pay the prosecution's costs for the appeal.
Appeals to the High Court of Australia for significant legal issues require permission from the High Court. It's crucial to discuss further legal options with your legal team, considering the strict criteria for such appeals.
How to appeal to the NSWCCA
To appeal a District Court decision in NSW, follow these steps:
Legal Representation: Engage a barrister and solicitor experienced in appeals to represent your case in the Court of Criminal Appeal. Your solicitor will help you find a barrister.
Notice of Intention to Appeal: File a Notice of Intention to Appeal within 28 days of the court's decision.
Extension for Filing (if necessary): If you miss the 28-day deadline, file a Notice of Application for Extension of Time. If approved, this will provide more time to submit the Notice of Intention to Appeal.
Notice of Appeal: Within 12 months of filing the Notice of Intention to Appeal, file a Notice of Appeal, detailing the grounds of your appeal, including submissions and supporting evidence.
Ensure that all submissions and documents comply with the strict court guidelines.
What will happen at the hearing for your appeal?
You can expect three judges to hear an appeal in the NSWCCA in Sydney.
Before the hearing, the judges will have reviewed all of the documents filed in the appeal by both parties, including trial transcripts and exhibits (for a conviction appeal), materials handed to the court about sentencing and both parties' submissions.
On the day of the hearing, both parties are usually represented by barristers who specialise in appeals, instructed by their solicitors. The barristers will make oral submissions in court and engage in questioning from the judges.
After hearing the submissions, judges may deliver an immediate judgment (although uncommon) or reserve their decision to be given at a later date.
The possible outcomes include upholding the original decision, overturning it, ordering a retrial or modifying the sentence.
Considering an appeal to the NSWCCA?
Please contact Kingston Fox Lawyers if you need assistance appealing with the NSWCCA. This is a very complex process that requires an experienced criminal lawyer.
Frequently asked questions
What is an ‘indictable appeal’?
An indictable appeal is a legal process for challenging a conviction or sentence for serious criminal offences, known as indictable offences, from the District or Supreme Courts of NSW. These appeals are heard by the NSWCCA. Indictable offences typically include serious crimes like armed robbery or sexual assault.
What is a Notice of Intention to Appeal?
A Notice of Intention to Appeal is a preliminary legal document filed in the NSWCCA, indicating the defendant’s intention to challenge a court decision. It must be filed within 28 days of the decision. This notice allows time to prepare the formal appeal, including gathering evidence and formulating legal arguments, before filing a completed Notice of Appeal.
What does it mean to apply for leave to appeal?
If you don't file a Notice of Appeal within 12 months of submitting your Notice of Intention to Appeal, you can still appeal, but you'll need to ask for permission by applying for leave to appeal. You submit both the application for permission and the appeal to the court together, and the court will hear them at the same time.
How do I appeal a District Court decision in NSW?
Appeals against decisions made in the District Court for criminal matters are made to the NSWCCA.
After the filing of the Notice of Intention to Appeal, a person has 12 months to file a Notice of Appeal and supporting documents and submissions.
Before proceeding with an appeal, it's advisable to seek legal advice. A lawyer can provide advice on the prospects of success of an appeal, relevant time constraints, and the material and evidence that might be required for a successful appeal.
What is the court hierarchy for criminal matters in NSW?
In NSW, for criminal matters, the court hierarchy is:
Local Court: Handles minor and less serious criminal cases, including drink driving, assaults and drug possession.
District Court: Deals with more serious criminal charges like sexual assault and more serious frauds.
Supreme Court: The highest state court for the most serious criminal cases, including murder.
Court of Criminal Appeal: Hears appeals from the District and Supreme Courts.
High Court of Australia: The highest appellate court for significant legal matters.
Do I need a lawyer for an appeal?
While it's not mandatory to have a lawyer for an appeal in NSW, it is highly recommended. Appeals can be complex, involving detailed legal arguments and an understanding of procedural rules. A lawyer can provide expert advice, prepare necessary documents, and represent you effectively in court. If you're considering an appeal, consulting a lawyer can significantly impact the outcome of your case.
Should I hire a new lawyer for an appeal?
When considering a new criminal lawyer for an appeal, assess if your current lawyer specialises in appellate law. Appeals require specific expertise. A new lawyer can offer a fresh perspective and may spot different aspects for appeal. Ultimately, choose based on who can best represent your appeal's specific needs.
What are the chances of winning an appeal?
The chances of winning an appeal depend on several factors, including the strength of the legal grounds for the appeal, the evidence and arguments presented, and the specifics of the case. Appeals are not retrials; witnesses do not come to court to give evidence for instance. Success rates vary, and it's important to have realistic expectations and seek expert legal advice to assess the merits of your appeal.
How much does it cost to appeal to the NSWCCA?
Appealing to the NSWCCA can have variable costs depending on the complexity of the matter and the type of appeal. It’s important to contact a lawyer for more information.
