Appeals and annulments

Before filing an appeal, you should get legal advice about:

• whether you have a good case to appeal
• the risk of getting a harsher penalty in the district court
• the risk of a costs order being made against you
• what to put in a notice of appeal form.

If you were previously represented, you should go back to the same lawyer for advice.

If you attend court when and are found guilty and sentenced, you may be able to appeal to the District Court of NSW.

You can appeal:

• your conviction, if you believe you’re not guilty
• your sentence, if you believe it is too harsh
• the court’s decision to dismiss your annulment application.

If you go to the district court, you usually can’t get a worse penalty. If the Judge is thinking about giving you a harsher penalty than what you received in the local court, they must warn you and give you a chance to withdraw your appeal. This is called a Parker warning. If you withdraw your appeal, the local court decision will apply.

Check the Uniform Civil Procedure Rules 2005 before using a generative artificial intelligence (AI) program such as ChatGPT to prepare documents for the Local, District or Supreme Court of NSW. These Rules permit AI use in some documents, such as submissions or reports, but you must include a statement that all citations, legal authorities and case law referred to exist and are accurate and relevant to the proceedings. The District Court and the Supreme Court also have Practice Notes which permit AI use for some types of documents, such as chronologies and indexes.

Under the Rules, you must not use AI in your affidavit or witness statement, and these documents must include a statement that AI was not used to generate the content. You must not put any confidential information about your matter into an AI program.  If you are unsure or feel the Court should let you use AI due to exceptional circumstances, get legal advice.

Before filing an appeal, you should get legal advice. If you were previously represented, you should go back to the same lawyer for advice.

You must complete a Notice of Appeal to the District Court form.

You can get a copy of the form from:

• your nearest local court registry, or
• the Forms page on the Local Court of NSW website.

In your form, you must state the general grounds for your appeal.

Once you have completed your form, you must file it at a local court registry and pay the filing fee.

You can file your completed form at any local court in NSW:

• in person
• by post
• by fax
• by email.

If you file your form by post, fax or email, it won’t be processed until you have paid the filing fee.

If you are experiencing financial hardship, you may be able to apply to have your fee postponed, waived or remitted.

For more information, see Fees on the Local Court of NSW website.

Once the registry has processed your form, it will notify you of the date when your appeal will be heard. The registry will also notify the police and the Director of Public Prosecutions (DPP), who will represent the police at the appeal.

You will need to seek the leave (permission) of the District Court of NSW to appeal more than 28 days after, and within three months of, the local court’s decision.

How to apply

You need to complete an Application for Leave to Appeal form.

You can get a copy of this form from:

• your nearest local court
• the Forms page on the Local Court of NSW website.

In your form, you must explain why you didn’t file an appeal within 28 days.

You must file this form at the same time you file your Notice of Appeal to the district court form.

The Court’s decision

After hearing your application, the court may:

• dismiss your application, or
• grant you leave to appeal.

The court will grant you leave to appeal if it is in the interests of justice to do so.

If the court grants you leave, it may hear your appeal immediately or adjourn your matter to another day.

You must be ready for the court to hear your appeal straight after it grants you leave.

Costs

If the court dismisses your application for leave to appeal, it can make a costs order against you. This means you may have to pay the legal costs of the prosecutor.

If you appeal within 28 days, your sentence will be stayed (stopped) until your appeal is heard.

If you apply for leave to appeal after 28 days but within three months, your sentence will be stayed when you are granted leave.

This includes the suspension or disqualification of your licence, if your licence was suspended or disqualified after you were sentenced.

If your licence was suspended on-the-spot, your licence will remain suspended until the court hears your appeal. You can ask the court for an order staying your suspension. The court will only make a stay order in exceptional circumstances.

When deciding whether there are exceptional circumstances, the court will consider:

• the strength of the prosecution case
• your need for a licence
• the potential danger to the community if a stay order is made

any other matter the court thinks is relevant.

You should check with the registry whether the execution of your sentenced will be stayed until your appeal is heard.

If your licence was suspended or disqualified, you should check with Transport for NSW (TfNSW) that the suspension or disqualification has been stayed before you drive again. If you surrendered your licence, you must get a new licence before you can start driving again.

What will happen at the hearing will depend on whether you are appealing:

• your conviction
• your sentence, or
• both.

Appeal against conviction

If you appeal your conviction, your appeal will be a re-hearing of the evidence that was given at the first hearing. The court will look at the documents and other items tendered and the transcripts from the first hearing. The lawyer for the DPP will provide the documents from the first hearing to the district court. The court will also hear submissions from yourself and the lawyer for the DPP.

In limited circumstances, the court can allow new evidence to be admitted but only where it is in the interests of justice to do so.

You are entitled to one free copy of the transcript of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.

To get a copy of the transcript from the local court hearing, you can:

• apply through the Online Registry website, or
• complete a Transcript Order Form.

For more information, see

Appeal against dismissal of annulment application

If you appeal the local court’s decision to dismiss your annulment application, the court may:

• grant your application and send your case back to the original court to be re-heard, or
• dismiss your appeal.

Appeal against conviction

If you appeal your conviction, the court may:

• set aside your conviction
• set aside your conviction and send your case back the original court for redetermination
• dismiss your appeal.

If your appeal is dismissed, your sentence will take effect.

If you were sentenced to gaol by the local court, and granted bail while your appeal was heard, you will be taken into custody.

Appeal against sentence

If you appeal your sentence, the court may:

• set aside your sentence
• vary your sentence
• dismiss your appeal.

If your appeal is dismissed, your sentence will take effect.

If you were sentenced to gaol by the local court, and granted bail while your appeal was heard, you will be taken into custody.

A court may make a costs order against you if your appeal is dismissed.