Court Appeals Lawyers
At Lawyer Call we take great pride in diligently handling a variety of matters on Appeal.
What is an Appeal in NSW
An Appeal involves the application to a Higher Court to reconsider the decision of the Lower Court. With the exception of an appeal to the District Court from a decision made in the Local Court, you would usually have to show that an error of law has been committed.
What can the Higher Court do?
In both circumstances where either an application has been lodged for either a Severity Appeal or an All Grounds Conviction Appeal, the Court has the power to do any of the following:
Dismiss the Appeal altogether
Make a finding that grounds of Appeal have been established, however, still dismiss the appeal due finding that a miscarriage of justice has not occurred
Set aside the conviction and make an order for a retrial
Set aside the conviction and make an order for an acquittal of the accused
This is an appeal to a decision made in the Local Court which has found you guilty of an offence.
A District Court Judge will rehear the evidence given in the Local Court, but may not do so if it fits into one of the categories of Section 19 of the Crime (Appeal & Review) Act 2001. Often, a Judge will determine the appeal by reading the transcript of the Local Court hearing, along with the submissions made by your legal Counsel at the time and the DPP.
The appeal is usually listed for a first mention between 2-4 weeks after its lodgement with the Registry. The transcripts are being made ready for both parties in the meantime, and after review a date for the Appeal Hearing will be set down.
Can I bring in new evidence to the District Court Appeal?
Most appeals in the District Court are centred upon the transcript of the evidence provided in the Local Court proceedings. If you seek to introduce new evidence to the matter, you will need to apply for special permission or ‘leave’ from the District Court. This permissions will only be granted if a strong enough argument can be made that it would be in the interests of justice to allow such material in.
Can I have a new person give evidence at my Appeal?
Yes, it is possible that the District Court may make an order that a person is to attend Court and give evidence at Appeal proceedings if either of the following criteria can be satisfied:
If the offence involves violence against another person, there is a need to highlight why the new person attend Court and give evidence, with specific reasoning as to how this would be in the interests of justice.
In all other cases, there would be a need to show why the new person should attend Court and give evidence, using compelling and significant reasons
It should be noted that this criteria is not easily met.
Contact Lawyer Call for expert legal advice regarding your options on assessing your evidence, transcript advice, legal opinion on introducing new witness and the overall likelihood of a successful appeal considering the particular set of circumstances.
At Lawyer Call we believe in transparency and honesty as an integral part to a positive client relationship, and should the matter not warrant an Appeal, it is better to be advised early on, rather than have the matter drag out with expensive legal fees.
What is a Severity (Sentence) Appeal?
A sentence appeal is made against a decision made in the Local Court by a Magistrate. The matter will then be heard in the District Court before a Judge. A solicitor from the office of the Director of Public Prosecutions (DPP) will appear in the District Court on behalf of the Police.
How to lodge the Appeal
An application for a severity appeal can be lodged:
At the Registry of any Local Court; or
The Manager in charge of the place where you are currently in custody
Appealing Decision by the Local Court Magistrate – Time Limits:
You have a right to appeal a decision finalised in the Local Court within 28 days of the conclusion of your Court matter.
If you have passed the 28 days deadline, but are still within a time frame of 3 months since the Court decision, you may still be able to appeal, however, you would need to obtain Leave from the District Court to do so. Act now and contact our Expert Defence solicitors at lawyer Call to make the application for the special permission to appeal before it is too late.
If more than 3 months have passed since the decision made in the Local Court, you will not be able to lodge an application for an appeal.
What happens when the Appeal is lodged?
As soon as an Appeal is lodged, any consequence arising out of the conviction are temporarily stayed (placed on hold).
What this means is that any penalty, whether that may be a sentence (custodial or otherwise) , or any order for restitution, compensation, destruction, asset seizure, or any other right that may be taken away under the authority of an Act, will temporarily be placed on hold, pending the outcome of the Appeal. This also applies to a disqualification, suspension or loss of a Licence, for example a Motor Vehicle Driver Licence.
There are however exceptions that apply to this Stay and they include:
If you have been refused bail, then any custodial sentence is to continue and the Stay will not come into effect
If the suspension notice was given to you by the Police, prior to the original court proceedings, that suspension period is not stayed, unless the District Court considers it fit to direct otherwise.
If you have not lodged the appeal application within 28 days, then the Stay cannot come into effect, until the District Court grants you Leave to Appeal, given that you still qualify within 3 months time frame.
Will I have to speak in Court on Appeal?
The usual Court procedure in Appeal matters involves the DPP handing up to the Judge a bundle of papers that summarise the details of the case and the decision made in the Local Court. These documents will include the Facts, your Criminal and/or Traffic Records, and any other paperwork, including previous character references and letters of apology that the Local Court Magistrate initially reviewed when sentencing you in the Local Court.
It is important that your lawyers assess that bundle carefully to ensure that nothing disadvantages your chances of being heard in a fair manner.
At Lawyer Call, our philosophy is that the Defence Bundle of paperwork is just as important to counter what the DPP puts forth in their bundle. We work zealously with you to prepare the right documentation prior to the Court date, as we strongly believe that this is a crucial element to a successful appeal.
In certain cases and depending on numerous factors, your lawyer will need to make an important decision as to whether or not get you need to be called to give oral evidence. Preparation of this is aspect of the Appeal Proceedings is very important, and here at Lawyer Call we will advise you at every step of the way what is expected of you in the witness box and the types of questions that you will be asked.
You should be aware that if a decision has been made for you to give oral evidence, you will then need to also be cross examined by the DPP solicitor and answer their questions.
Once all the evidence has been complete for both sides, verbal submissions (a short speech) will be made by your lawyer in an attempt to sway the Judge to uphold the Appeal with view of receiving a lighter sentence.
Can I get a worse result on Appeal? – Parker Warning
While these occasions are rare, there are times when a warning must be given by the Judge in the District Court indicating that they intend to increase the penalty that was originally given in the Local Court. This is called a Parker warning.
If such a warning is given, you have the opportunity of withdrawing your Appeal proceedings prior to being heard before the Judge, and as a result your penalty from the Local Court will not increase. However, if you decide to proceed with the Appeal proceedings after the Parker warning has been read out, the Judge will now have the authority to potentially impose a greater penalty. A decision will be need to be made together with your lawyer at that point whether there are merits in you going forward with the Appeal.
Our policy here at Lawyer Call is simple and speaks volumes.
If your result on Appeal in the District Court is not better than the result obtained in the Local Court, then you don’t pay any fees for the entire Appeal process.