Appeals in ACT

If you believe you have been wrongly convicted of a crime or received a harsh sentence, know that you have the right to pursue an appeal. It could be that you believe the conviction itself is wrong or there may be an argument that one or more legal errors occurred in the handling of your case.

CONVICTION APPEAL – ACT MAGISTRATES TO SUPREME COURT

A conviction appeal is lodged when a person in the ACT has been found guilty of a crime at the Magistrates Court and wishes to appeal against this conviction in an attempt to overturn this finding at the Supreme Court. It is not a new hearing, and it requires you to establish a legal or factual error in the Magistrates Court in order to be successful in the appeal.

For a conviction appeal to the ACT Supreme Court, your lawyer must establish that the trial court made a significant error of law or fact, a miscarriage of justice occurred, or there were procedural irregularities impacting the fairness of the trial. This involves filing a notice of appeal, outlining the grounds for appeal, preparing the trial record, submitting written arguments, and possibly presenting oral arguments. The appellate court then reviews these elements to determine if the original conviction should be overturned or modified.

Why should I file a conviction appeal?

If either a finding of guilt/conviction in the ACT Magistrates Court is unjust or the process of the hearing leading to that conviction was unfair or involved some error there may be good grounds to filing a conviction appeal.  If successful in the appeal you may have the conviction and any sentences overturned or be granted a rehearing of the matter in the Magistrates Court.

What is the process of a conviction appeal?

  • Any appeal from the ACT Magistrates Court to ACT Supreme Court must be made within 28 days of the conviction or final sentence being handed down, whichever is later.
  • A Notice of Appeal identifying any error must be filed in the ACT Supreme Court to commence an appeal.
  • The ACT Supreme Court will list the matter for an Appeal Index Directions Hearing.
  • The party appealing must order and file a copy of the transcript of the original hearing.
  • The ACT Supreme Court Registry will prepare the appeal book for the appeal from the material available in the Magistrates Court file.
  • The ACT Supreme Court will list the matter for the appeal hearing before a single judge and parties will be required to file written submissions.
  • The Supreme Court must then consider all the necessary evidence from the Magistrates Court hearing and make a decision to allow or deny the appeal to proceed.
  • With the benefit of the appeal book, transcript, written submissions and any further supplementary oral submissions at the appeal hearing a single judge of the ACT Supreme Court will then decide the appeal.

Q. Am I eligible to file for a conviction appeal?

A. You have a statutory right to appeal your conviction. Therefore, you may be eligible to file for a conviction appeal if you were found guilty of an offence in the Magistrates Court and you believe that there was an error of law in your hearing that resulted in an unfair or incorrect finding.

Q. Will I still have to go to gaol if I am appealing my conviction?

A. If you appeal against your conviction then the penalties enforced by the convictions being appealed may be placed on hold until your appeal is upheld (and the finding of guilty is quashed) or refused. All sentences are generally stayed (put on hold) pending the outcome of the appeal except for sentences of full-time imprisonment.

It is possible to apply for bail on the grounds of appeal (under the Bail Act 1992) if you were sentenced to full-time on the original conviction but special or exceptional circumstances must be established. These circumstances usually require there to be arguable grounds of appeal and a prospect that most of a sentence of full-time imprisonment will be completed before the appeal hearing is reached. If bail is granted you will be released from custody, under specific conditions, until your appeal is upheld or refused.

Q. What possible outcomes could my conviction appeal have?

A. The judge of the conviction appeal in the ACT Supreme Court may:

  • Uphold your appeal and quash your original conviction;
  • Uphold your appeal but remit the charge back to the Magistrates Court for a rehearing;
  • Refuse the appeal and maintain the original conviction.

Severity Appeal – ACT Magistrates to Supreme Court

A severity appeal from the ACT Magistrates Court to the Supreme is filed when you plead, or are found guilty, of an offence at the ACT Magistrates Court but you wish to appeal against the severity of the penalty imposed. It is not a new hearing, and it requires you to establish a legal or factual error in the sentencing process or in the final penalty imposed.

To successfully argue an appeal against a conviction in the ACT Supreme Court, your criminal defence lawyer needs to identify specific grounds for the appeal, such as legal or factual errors, a miscarriage of justice, or procedural irregularities. They must file a notice of appeal on time, compile the trial record, draft detailed written arguments, and potentially present oral arguments. The lawyer must clearly show how these errors affected the trial’s fairness and outcome to persuade the appellate court to overturn or modify the conviction.

Why should I file a severity appeal?

If either the final sentence in the ACT Magistrates Court is excessive or the process of sentencing was unfair or involved some error there may be good grounds to filing a severity appeal.  If successful in the appeal you may have the sentence reduced through a resentencing process.

The Supreme Court theoretically has the power to increase a sentence in resentencing if an error is established in a severity appeal but this can only occur if a formal warning to this effect is given to the appealing party, to allow an opportunity to withdraw the appeal, and they proceed with the appeal regardless.

What is the process of filing a severity appeal?

  • Any appeal from the ACT Magistrates Court to ACT Supreme Court must be made within 28 days of the sentence being handed down.
  • A Notice of Appeal identifying any error must be filed in the ACT Supreme Court to commence an appeal.
  • The ACT Supreme Court will list the matter for an Appeal Index Directions Hearing.
  • The party appealing must order and file a copy of the transcript of the original hearing.
  • The ACT Supreme Court Registry will prepare the appeal book for the appeal from the material available in the Magistrates Court file.
  • The ACT Supreme Court will list the matter for the appeal hearing before a single judge and parties will be required to file written submissions.
  • With the benefit of the appeal book, transcript, written submissions and any further supplementary oral submissions at the appeal hearing a single judge of the ACT Supreme Court will then decide the appeal.
  • If an error is established the ACT Supreme Court a resentencing may occur if considered appropriate.

What are common grounds of severity appeals?

When appealing against the severity of a sentence, the alleged errors that occurred must be identified in the grounds of appeal. Potential grounds of appeal may include, amongst many others:

  1. The Magistrate relied on evidence that should have been excluded;
  2. The Magistrate did not have regard to relevant consideration, or had regard to irrelevant considerations;
  3. The objective seriousness of an offence was incorrectly characterised;
  4. The Magistrate made improper findings of facts for sentencing;
  5. The sentence imposed was manifestly excessive in all of the circumstances.

Q. Am I eligible for a severity appeal?

A. You have a statutory right to appeal your sentence. Therefore, you may be eligible to file for a severity appeal if you were found guilty of an offence at the ACTMC and you believe that the sentence imposed was unfair, made in error or excessive.

Q.What possible outcomes could my severity appeal have?

A. If your appeal is successful the Supreme Court judge will likely resentence you to a less severe sentence. If error was established in the sentencing process the court must resentence you unless it is of the view that the penalty imposed was nonetheless appropriate. If unsuccessful the original sentence will remain in place.

CONVICTION APPEAL – ACT SUPREME COURT TO ACT COURT OF APPEAL

A conviction appeal is lodged when a person in the ACT Supreme Court has been found guilty of a crime by a judge or jury at trial and wishes to appeal against this conviction in an attempt to overturn this finding in the ACT Court of Appeal before 3 judges. It is not a new hearing, and it requires you to establish a legal or factual error in the trial in order to be successful in the appeal.

To successfully argue an appeal in the ACT Court of Appeal, your lawyer must:

  1. Identify specific grounds for appeal (errors of law, fact, miscarriage of justice, or procedural irregularities).
  2. File a timely notice of appeal.
  3. Prepare the complete trial record.
  4. Draft detailed written arguments.
  5. Present oral arguments if required.

Your lawyer needs to show that these errors significantly impacted the trial’s fairness and outcome to convince the court to overturn or modify the conviction.

Why should I file a conviction appeal?

If either a finding of guilt/conviction in the ACT Supreme Court is unjust or the process of the trial leading to that conviction was unfair or involved some error there may be good grounds to filing a conviction appeal.  If successful in the appeal you may have the conviction and any sentences overturned or be granted a retrial in the ACT Supreme Court.

What is the process of a conviction appeal?

  • Any appeal from the ACT Supreme Court to ACT Court of Appeal must be made within 28 days of the finding of guilt/conviction, even if this before sentencing.
  • A Notice of Appeal identifying any error must be filed in the ACT Supreme Court to commence an appeal.
  • The ACT Court of Appeal will list the matter for an Appeal Index Directions Hearing.
  • The party appealing must order a copy of the transcripts of the original trial.
  • The party appealing must prepare the relevant appeal books which include the transcripts, exhibits tendered during the trial, written submissions and relevant authorities.
  • The ACT Court of Appeal will list the matter for the appeal hearing before 3 judges.
  • With the benefit of the appeal books, transcripts, written submissions, authorities, and any further supplementary oral submissions at the appeal hearing, 3 judges of the ACT Court of Appeal will then decide the appeal.

Q. Am I eligible to file for a conviction appeal?

A. You have a statutory right to appeal your conviction. Therefore, you may be eligible to file for a conviction appeal if you were found guilty of an offence in the ACT Supreme Court and you believe that there was an error of law in your trial that resulted in an unfair or incorrect finding.

Q. Will I still have to go to gaol if I am appealing my conviction?

A. In appeals to the ACT Court of Appeal, sentences are generally not stayed (put on hold) pending the outcome of the appeal. This includes sentences of full-time imprisonment.

It is possible to apply for bail on the grounds of appeal (under the Bail Act 1992) if you were sentenced to full-time on the original conviction but special or exceptional circumstances must be established. These circumstances usually require there to be arguable grounds of appeal and a prospect that most of a sentence of full-time imprisonment will be completed before the appeal hearing is reached. If bail is granted you will be released from custody, under specific conditions, until your appeal is upheld or refused.

Q. What possible outcomes could my conviction appeal have?

A. A majority or all of the 3 judges of the ACT Court of Appeal may:

  • Uphold your appeal and quash your original conviction;
  • Uphold your appeal but remit the charge back to the Supreme Court for a retrial;
  • Refuse the appeal and maintain the original conviction.

SEVERITY APPEAL – ACT SUPREME COURT TO ACT COURT OF APPEAL

A severity appeal from the ACT Supreme Court to the ACT Court of Appeal is filed when you plead, or are found guilty, of an offence at the Supreme Court but wish to appeal against the severity of the penalty imposed. It is not a new hearing, and it requires you to establish a legal or factual error in the sentencing process or in the final penalty imposed.

To successfully argue a severity appeal in the ACT Court of Appeal, your lawyer must identify that the sentence was excessively harsh or inappropriate, file a timely notice of appeal, prepare relevant documents (like the sentencing transcript and pre-sentence report), draft detailed written arguments citing legal precedents and comparative cases, and be ready to present oral arguments if necessary. The goal is to convincingly demonstrate that the original sentence was unjustifiable, prompting the court to reduce its severity.

Why should I file a severity appeal?

If either the final sentence in the ACT Supreme Court is excessive or the process of sentencing was unfair or involved some error there may be good grounds to filing a severity appeal.  If successful in the appeal you may have the sentence reduced through a resentencing process.

The ACT Court of Appeal theoretically has the power to increase a sentence in resentencing if an error is established in a severity appeal but this can only occur if a formal warning to this effect is given to the appealing party, to allow an opportunity to withdraw the appeal, and they proceed with the appeal regardless.

What is the process of filing a severity appeal?

  • Any appeal from the ACT Supreme Court to ACT Court of Appeal must be made within 28 days of the sentence being handed down.
  • A Notice of Appeal identifying any error must be filed in the ACT Supreme Court to commence an appeal.
  • The ACT Court of Appeal will list the matter for an Appeal Index Directions Hearing.
  • The party appealing must order a copy of the transcripts of the original trial.
  • The party appealing must prepare the relevant appeal books which include the transcripts, exhibits tendered during the sentence hearing, written submissions and relevant authorities.
  • The ACT Court of Appeal will list the matter for the appeal hearing before 3 judges.
  • With the benefit of the appeal books, transcripts, written submissions, authorities, and any further supplementary oral submissions at the appeal hearing, 3 judges of the ACT Court of Appeal will then decide the appeal.

What are common grounds of severity appeals?

When appealing against the severity of a sentence, the alleged errors that occurred must be identified in the grounds of appeal. Potential grounds of appeal may include, amongst many others:

  1. The Judge relied on evidence that should have been excluded;
  2. The Judge did not have regard to relevant consideration, or had regard to irrelevant considerations;
  3. The objective seriousness of an offence was incorrectly characterised;
  4. The Judge made improper findings of facts for sentencing;
  5. The sentence imposed was manifestly excessive in all of the circumstances.

Q. Am I eligible for a severity appeal?

A. You have a statutory right to appeal your sentence. Therefore, you may be eligible to file for a severity appeal if you were found guilty of an offence at the ACT Court of Appeal and you believe that the sentence imposed was unfair, made in error or excessive.

Q. What possible outcomes could my severity appeal have?

A. If your appeal is successful the ACT Court of Appeal will likely resentence you to a less severe sentence. If error was established in the sentencing process the court must resentence you unless it is of the view that the penalty imposed was nonetheless appropriate. If unsuccessful the original sentence will remain in place.

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