If you are found guilty after a hearing in the NSW Local Court (or Children’s Court), you have an automatic right to appeal your conviction to the District Court. You must lodge your conviction appeal within 28 days of your conviction. The date of the conviction is the date of sentencing so if your matter is adjourned for sentence, the clock starts ticking on your 28 days when your sentence is determined not necessarily on the date that the Local Court found the offences proven.
If you do not lodge your conviction appeal within 28 days, you have up to 3 months following your conviction to seek leave to appeal your conviction. When determining if you have leave to appeal your conviction the court will consider whether it is in the interests of justice to grant leave. If you have not lodged your appeal within the 3 month period, you are unable to appeal your conviction.
In the Local Court hearing a Police Prosecutor appears for the prosecution. In the District Court appeal, a solicitor for the Director of Public Prosecutions will appear as the respondent. If you are appealing your conviction, you are referred to as the appellant.
When a conviction appeal is lodged, a transcript of the Local Court proceedings will be ordered. The transcript includes:
- the evidence given by each witness (both in chief and cross-examination)
- if you gave evidence, the transcript will contain your evidence in chief and in cross-examination
- any objections made by each party and the legal argument surrounding those objections
- the prosecution and the defence submissions
- the Magistrate’s reasons (although the appellate judge will form their own view on the appeal, they can have regard to the Magistrate’s reasons)
The District Court requires an appellant to file and serve an outline of written submissions in support of the appeal. These written submissions must include references to citations of authorities and the transcript pages from the Local Court hearing that will be relied upon. The submissions must clearly identify the issues in the appeal. While it is not necessary for an appellant to establish any particular error in the Magistrate’s reasoning the appellant must outline the grounds of the appeal. The grounds of the appeal are essentially the reasons you say you should not have been convicted.
The conviction appeal is a rehearing of the Local Court proceedings. This means that the Judge will work off the transcript of the Local Court proceedings rather than having witnesses attend court to give evidence again. The Judge hearing the appeal will form their own judgment on the facts while recognising the advantage the Magistrate had in hearing and seeing the witnesses in the Local Court.
If evidence was not called in the Local Court hearing or if a witness was not cross-examined in the Local Court hearing, you may seek leave to adduce fresh evidence. The court will want to know why the witnesses were not called or adequately cross-examined in the Local Court proceedings and will need to be satisfied that it is in the interests of justice for the fresh evidence to be given.
After considering the transcript and any submissions made by each party, the judge will either uphold the appeal and quash the conviction imposed in the Local Court or dismiss the appeal which means the conviction stands.
In addition to appealing your conviction, you may wish to appeal any sentence you receive following conviction.
Appealing a conviction can be a complicated process but very worthwhile if issues are clearly identified and argued. Our specialist team have extensive experience in running conviction appeals and can provide tailored advice and guidance. If you would like more information on conviction appeals please contact us to speak with a lawyer.
Helen Christinson, Associate