Severity and Conviction Appeals

We often hear on the news and in the papers about appeals and high-profile cases having their appeals dismissed or allowed.

An appeal is a request by a party to a proceeding to re-consider a decision made by another court.

There are many kinds of appeals, it largely depends on what happened in your case and what court it happened in. In summary, the different types of appeals in NSW are as follows:

1.      Annulment of conviction in the local court

2.      Appeal against Local Court sentence

3.      Appeal against Local Court conviction

4.      Supreme Court of Criminal Appeal

ANNULMENTS IN THE LOCAL COURT

THE PROVISION:

Section 4 of the Crimes (Appeal and Review) Act 2001 (NSW) provides that a person can make an application for the conviction or sentence made by a Local Court to be “annulled”. This means that a person can have the opportunity to have their matter re-heard at the Local Court rather than having to appeal to the district court. However, an Annulment application can only be made in the following circumstances:

1.      In the case of an annulment of a conviction – the defendant was not in appearance when the conviction was made, OR

2.      In the case of an annulment of a sentence – the defendant was not in appearance when the sentence was imposed.

Generally speaking, a person must make this annulment application within two years after the relevant conviction or sentence was imposed.

DEFINITIONS:

CONVICTION – A conviction is defined broadly to include any result where a person received a conviction as well as any disposition of the matter on the grounds of mental illness.

SENTENCE – A sentence includes any court order imposed or made following a conviction for an offence.

APPEALS AGAINST LOCAL COURT SENTENCES/CONVICTIONS

TYPES OF APPEALS:

Broadly speaking, there are two types of appeals when appealing a local court sentence, they are as follows:

1.      Severity Appeal – Where a person appeals the severity of the sentence imposed.

2.      Conviction Appeal – Where a person appeals the finding of guilt imposed by a local court magistrate.

Fact sheet to Severity appeals – Local Court to District Court

DEFINITION – Severity appeals are utilised where a person accepts that they committed the offences or don’t wish to challenge the finding that they committed the offences, but they believe their sentence was too severe.

TIME LIMIT TO LODGE – A person has 28 days from the date that the sentence was imposed to lodge a severity appeal.

OUTCOME – The outcomes that may result from severity appeals are as follows:

1.      By setting aside the sentence, or

2.      By varying the sentence (either by imposing a more or less severe sentence), or

3.      By dismissing the appeal.

PARKER DIRECTION – If the court is considering the imposition of a more severe penalty, the judge is obligated to warn the appellant that their intention is to increase the sentence if they are considering it (Parker v DPP (1992) 28 NSWLR 282), this would allow the appellant to withdraw the appeal if they wish prior to the judge imposing a more severe penalty.

Fact sheet to Conviction appeals – Local Court to District Court

DEFINITION – Conviction appeals are utilised where a person wishes to appeal a finding of guilt by a magistrate. This would mean that as a question of law, they were not guilty of the offences beyond reasonable doubt.

TIME LIMIT TO LODGE – A person has 28 days from the date that the sentence was imposed to lodge a conviction appeal. A person must seek leave of the court (get permission) to file a conviction appeal for up to 3 months after the date of the sentence to file an appeal.

OUTCOME – The outcomes that may result from conviction appeals are as follows:

1.      Set aside the guilty verdict and conviction, acquit you and dismiss the charge(s), or

2.      If the appeal requires leave from the District Court, 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

3.      Dismiss the appeal.

SEEKING LEAVE AFTER A PLEA OF GUILTY – It is possible in some rare circumstances to seek leave to appeal a conviction after a plea of guilty, however it is usually only granted in circumstances where the defendant was unrepresented, and the following occurred:

A)     They weren’t given notice of their right to elect

B)     They weren’t given a copy of their criminal history

COURT OF CRIMINAL APPEAL

The New South Wales Court of Criminal Appeal is the highest court in NSW for appealing criminal cases. These appeals are heard directly from the district court. Much like appealing from the local to the district court, there are two types of appeals, Conviction appeals and Severity Appeals. However, unlike appeals to the district court, the court must grant leave and leave will only be granted if there are grounds of appeal.

GROUNDS FOR APPEAL

CONVICTION APPEAL:

The grounds for a conviction appeal are as follows:

1.      Miscarriage of justice resulting from legal representation

a.      Where incompetence or carelessness of your legal representative caused a miscarriage of justice.

2.      Error in exercising discretion to allow or exclude evidence in a trial.

a.      Where the judge erred in allowing or excluding evidence which was either relevant/irrelevant or where they acted on an incorrect principal of law when considering such evidences admissibility.

3.      New evidence has come to light

a.      Where the absence of fresh evidence which wasn’t available to the lower court caused a miscarriage of justice due to it not being considered.

4.      The convictions are unreasonable and/or cannot be supported by the evidence

a.      Where the decision reached by the jury or trial judge (in a judge alone trial), was unreasonable based on the evidence before it.

5.      Inconsistent verdicts

a.      Where an accused is charged with multiple offences and the finding of guilt in relation to one offence is inconsistent with the finding of innocence in relation to another.

6.      Misdirection in the summing up by the judge to the jury

a.      Where the trial judge erred in providing the jury with directions or information that it should not have given.

7.      Procedural unfairness

a.      Where the defendant was denied a matter of procedural fairness in relation to their trial.

SEVERITY APPEAL:

The grounds for a severity appeal in the CCA are as follows:

1.      The original sentence was manifestly excessive

a.      Where the court concludes that the sentence imposed by the district court judge was so different from other cases of a similar nature that it must have been an error of principle.

2.      A specific error of law/fact

a.      Where the judge considered an irrelevant matter or failed to consider a relevant matter of fact or law during the sentence proceedings.

3.      New evidence comes to light

a.      Where the court allows the appeal on the basis that the fresh evidence satisfies the court of all of the following:

i.      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

ii.      The offender didn’t know of it or didn’t realise its significance; and

iii.      The offender’s lawyer(s) didn’t know about it at the time

TIME LIMITS IN THE CCA:

Unlike District Court appeals, appeals to the CCA are a much more complex process, as such the court allows more time to prepare appeals of this kind. Firstly, within 28 days from the day of conviction or sentence, a person must lodge either;

1.      A notice of intention to Appeal; or

2.      A notice of intention to Appeal for leave to Appeal;

An appellant is then granted 6-months before the notice of intention to appeal expires and the defendant must file multiple documents including:

1.      A notice of appeal; AND

2.      Grounds of appeal; AND

3.      Written submissions; AND

4.      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 for the appellant.

Both the 28 day and 6-month periods can be extended by the court, however they will not always be extended.

OUTCOME’S FOR CCA APPEALS

Conviction appeals

The CCA can do any of the following:

1.      The court can quash the conviction and acquit the accused person.

2.      If an error occurred in the original court, the CCA can remit the case back to the original court for a retrial.

3.      Dismiss the appeal if no error occurred in the original court; or

4.      Dismiss the appeal where a miscarriage of justice is not found even though an error occurred in the original court.

Severity appeals

The CCA can do any of the following:

1.      Where an error is identified in the original sentence, the CCA can quash the original sentence and re-impose a lesser sentence, the same sentence or a greater sentence than what was imposed by the original court.

2.      Where an error is identified in the original sentence, the court can remit the case back to the original court with directions on what should be done regarding the issue.

3.      Dismiss the appeal if no error occurred in the original court.

4.      Dismiss the appeal where a miscarriage of justice is not found even though an error occurred in the original court.

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