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Legal Aid NSW and criminal appeals

Why do we have an appeals system in Australia?

A person’s right to appeal their conviction for a criminal offence, or the sentence they were given, is an important part of our criminal justice system.

Courts that hear appeals (called Appeals Courts) can correct mistakes that are sometimes made by the lower courts. They also make sure that trials are fair and that the law is applied consistently.

Decisions of Appeals Courts help clarify the law. They guide law enforcement agencies (like the police), courts that make decisions in later cases and the community about how criminal laws should be applied.

How does the criminal appeals system in NSW work?

Decisions made by magistrates of the Local Court can be appealed to the District Court or the Supreme Court.

Decisions made by judges of the NSW District Court or the Supreme Court of NSW can be appealed to the NSW Court of Criminal Appeal (CCA).

A person who appeals is called the appellant. The party on the other side is called the respondent.

Only the person who was convicted, or the prosecutor, can appeal. Victims of crime do not have a right to appeal in criminal cases.

The Office of the Director of Public Prosecutions (ODPP) represents the prosecutor in appeals in the CCA.

A person who is convicted of a crime has a right to appeal to the CCA if they think that the judge who convicted them made a mistake about the law.

But they will need to ask the CCA for permission to appeal if they think:

  • the first court got the facts of the case wrong, or
  • the first court got the law and the facts wrong, or
  • their sentence is too harsh.

The CCA does not hear the whole case again.

Sometimes cases can be appealed to the High Court of Australia, but this only happens in rare cases.

The High Court has to give permission to appeal, and it will only give this permission in cases of ‘major importance’. For example, a case may be of major importance if it is likely to affect many future cases, or it deals with legal questions that have been decided in inconsistent ways by two or more lower courts.

What types of appeals to the CCA are there?

There are four types of appeals:

A conviction appeal

This is when the person who was convicted says they should not have been convicted.

The appellant will succeed if the CCA agrees that:

  • the first judge made mistakes during the first trial which are important to fix, or
  • justice was not done.

If this appeal succeeds, the CCA will cancel (‘quash’) the conviction and then either:

  • order a re-trial, or
  • find the person who was convicted not guilty (‘acquit’ the appellant).

A sentence appeal

This is when the person who was convicted says the sentence they were given was too harsh.

The appellant will succeed if the CCA agrees that the first judge made an important mistake that meant the sentence is too harsh and the person should have got a lesser sentence.

An all grounds appeal

This is when the person who was convicted appeals against:

  • their conviction, and
  • the sentence they were given.

A sentence appeal by the prosecution

This is when the prosecutor appeals against the sentence that was given to the person.

They will do this if they think the sentence was too soft. If the appeal is successful, the CCA may give the person a harsher sentence.

Is it a good idea to be represented by a lawyer at an appeal?

The appeals system works best if both parties - the appellant and the respondent - are represented by lawyers.

This is because complex legal arguments are made during an appeal and each party is expected to respond to the other party’s arguments. This process can often take a long time.

If a person doesn’t have a lawyer for their appeal, there is more risk that the hearing will take longer, and that the person may not get a fair hearing.

Can Legal Aid NSW help a person with an appeal?

We can help some people:

  • who want to appeal their conviction or sentence, or
  • if the prosecutor appeals the decision in their case.

To get help a person needs to apply for a grant of legal aid. If they get a grant of legal aid, a lawyer who works for us, or a private lawyer we pay, will represent them in court.

Not everyone can get a grant of legal aid. For more information about this, see section below 'Who can get a grant of legal aid for their appeal?'.

Who can get a grant of legal aid for their appeal?

We look at a number of things - called tests - when we get an application for a grant of legal aid for a lawyer to represent someone in an appeal.

The main tests we look at are the:

  • Means test - which looks at how much money (income and assets) the person has, and
  • Merit Test - which looks at how strong their appeal case is (if they are the appellant). We will get a written opinion from an experienced barrister about whether the appeal is likely to succeed in the CCA.

We also need to decide if the costs we spend on the case will be likely to benefit the person who wants to appeal, or in some cases, the community.

You can find more information about these tests and who can get legal aid for an appeal here.

Very few criminal cases are appealed to the CCA.

Legal Aid NSW receives a large number of application for grants of aid for appeals. Most of the applications are refused because the advice we get is that they are not likely to succeed.

Where can I get more information?

You can get more information about appeals to the CCA in the Legal Aid NSW brochure called A guide to indictable appeals.

You can get more information about appeals to the District Court in the Legal Aid NSW brochure called Appealing to the District Court.