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Reviewing and appealing a local court decision
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If you were absent:
You have the right to apply to the Local Court to review a conviction, penalty or order made in your absence. This is called an application for annulment.
How do you apply for this review?
You can lodge an application in writing with the Registrar of any Local Court. It does not have to be the court where the decision was made.
When can you apply for a review?
You have two years from the date that the conviction or order was made or the penalty imposed. If the two years have expired, you can still ask the Attorney General to investigate your case.
Can you apply for legal aid?
You will be granted legal aid if: you satisfy the means test; legal aid would have been available for the original proceedings in the Local Court; and your application has reasonable prospects of success. What do you have to prove?
You must satisfy the Local Court that: you were not aware of the proceedings, or you could not take part in the proceedings because of accident, illness, misadventure or other cause, or the circumstances of your case justify the application being granted.
When will the application be heard?
The Registrar of the Court will notify you, and any other person affected by the decision, when and where the application will be heard. It may be heard without the parties being present, in open court or in the magistrate's chambers.
What happens until the application is heard?
The Court may suspend the order made in your absence until the application for review has been heard.
What happens if you are successful?
The Court will annul the decision. This means the penalty or order made in your absence no longer has any effect. The Court will then hear the case. That may be done immediately or may be adjourned to a later date if witnesses are required to give evidence.
What happens if you are unsuccessful?
The conviction, penalty or orders made in your absence will not be changed. Can you appeal the refusal to grant an annulment?
Yes. You can appeal to the District Court by lodging an appeal in writing with the Registrar of any Local Court. You should lodge your appeal within 28 days of the decision being made in the Local Court. If you don't, you can ask permission to appeal within three months of the decision. You cannot appeal if your appeal is lodged more than three months after the decision in the Local Court. You cannot ask the District Court to annul any conviction, penalty or sentence unless the Local Court has first refused your application. What happens if you are successful in the District Court?
If you are successful in your appeal against the Local Court in refusing to annul your conviction or sentence, the District Court will send your case back to the Local Court where it will hear the case in your presence. At the completion of your court case you may still appeal to the District Court either against your conviction or sentence. If you were present:
You have the right to appeal a conviction, sentence or penalty imposed by the Local Court. The appeal is heard by the District Court.
You can appeal if: you think the penalty the court gave you is too severe, or you say that you are not guilty of the offence.
How do you appeal?
You can appeal at any Local Court by lodging a Notice of Appeal. The court staff will assist you to prepare it. If you are in gaol you can lodge an appeal at the gaol. Our Prisoners Legal Service can help you. Ring them on 9219 5888 (reverse charges). Calls to this service count as a legal phone call.
You may have to pay an appeal fee, but you can ask to pay this later if you cannot afford it.
On the Notice of Appeal you need to say whether: you are not guilty (called a conviction appeal) and/or the penalty is too severe (called a severity appeal).
How soon do you have to lodge an appeal?
Lodge your appeal quickly. You should lodge your appeal within 28 days of the date you were sentenced. If you don't, you can apply for leave to appeal within three months after the date you were sentenced. However, you must also provide a document explaining why you failed to lodge the Notice of Appeal within 28 days. Local Court or gaol staff can also help you prepare this document.
If a Notice of Appeal is lodged later than three months from the date you were sentenced in the Local Court, then your appeal is 'out of time' and the District Court has no power to hear the appeal. This means the sentence of the Local Court must stand.
Can you apply for legal aid?
If you want to apply for legal aid, you must apply as soon as possible after lodging the appeal.
Legal aid will only be granted for your appeal if you satisfy the means test and you are appealing a sentence of imprisonment or there are exceptional circumstances and your appeal has a reasonable chance of success. If it is a conviction appeal you will also need to satisfy a merit test.
What happens to the penalty between lodging the appeal and the hearing of the appeal?
Usually, the penalty is suspended once the appeal is lodged, however, you should get advice from a lawyer. If you get a gaol sentence (including home detention and periodic detention), you will need to get bail as soon as possible from the Magistrate or the Supreme Court or wait until you appear at the District Court. If you are not in custody, you may have to sign a recognisance to prosecute the appeal. This is your promise that you will go on with your appeal. Once this is signed or you are given bail, your penalty is suspended.
Sometimes you might want the penalty to continue until your appeal is heard. For example, a gaol sentence might only be reduced on appeal, not set aside.
In an appeal against a period of disqualification the District Court cannot back date the period of disqualification to the date of the Local Court sentence.
What happens at the hearing of the appeal?
In a severity appeal, the District Court will look at the Local Court papers. You can give any new evidence that you wish on a severity appeal.
If the appeal is a conviction appeal, the District Court will look at the 'transcript of the evidence' given in the Local Court. This a typed copy of the spoken evidence of the witnesses. To give any new evidence in a conviction appeal you will need the permission of the District Court.
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