An Appeal against a decision
(following a Local Court Hearing) which was made by a Local Court Magistrate who
finds a person guilty of an offence is commonly known as a ‘Conviction Appeal’
If a person has been found guilty in
the Local Court of an offence, following a Local Court Hearing, a person has a
right to appeal such decision to the District Court and this is subject to the
appeal being filed within 28 days of the case finishing in the Local Court.
However, if a person fails to file an
appeal within the 28-day window, then the appeal must be filed within 3 months
of the finalisation of the local court matter, but this is only subject to the
District Court Judge granting ‘Leave’ (another word for ‘permission’) to
Appeal.
Once the 3-month window to appeal
(which is 3 months from the date of finalisation of the Local Court matter) has
expired, a person will not be able to appeal the matter from the Local Court
to the District Court.
What is the procedure, & can I call ‘Fresh’ evidence on Appeal?
A District Court Appeal is usually
listed 2-3 weeks after lodgement.
The first Court date in the District
Court will be a ‘Mention’ and the purpose of the mention is for parties to
obtain a copy of the transcript(s) from the Local Court Hearing. It should be
noted that if the transcripts are in fact available prior to the first Mention
date in the District Court, then the matter will be listed for Hearing at the
District Court on the first return date and if the transcripts are not
available prior to the first mention date then the matter will be adjourned for
some time for parties to obtain the transcripts.
Once the parties in the proceedings
have obtained the transcripts of the Local Court proceedings, then the matter
will later be set down for a District Court Hearing so that the Conviction Appeal
can be heard.
The Appellant (who is the person
appealing the decision from the Local Court to the District Court) will be
entitled to receive a free copy of the transcripts of the evidence which
was heard in the Local Court Hearing.
The main legislation which governs
appeals is the ‘Crimes (Appeal & Review) Act 2001’ which sets
out the appeal procedure(s) as well as the laws governing what can and cannot
be done on appeal. Section 18 of the ‘Crimes (Appeal & Review)
Act 2001’ notes that a conviction Appeal is made by way of ‘rehearing
of the evidence’ in the Local Court.
Section 19 of the ‘Crimes (Appeal & Review) Act 2001’ also
sets out the exception with respect to Hearing of additional or ‘fresh’
evidence on Appeal. This simply means that an appeal
will normally be determined by the District Court Judge who is reviewing the
exhibits from the Local Court Hearing, reading and hearing submissions from
both the ODPP (Prosecution) and the defence lawyer and more importantly, the
District Court Judge will also be reading the transcript(s) of the Local Court
Hearing to make a determination as to whether or not the appeal should be ‘Allowed’
or ‘dismissed.’
If a party is seeking to tender
‘fresh’ evidence on appeal at the District Court, this can only be done by way
of ‘Leave’ (permission) from the District Court Judge who is hearing the
Appeal. It should be noted that the District Court will not simply grant leave
because the Appellant would like their lawyer to cross examine a prosecution
witness once again. Section 19 of the ‘Crimes (Appeal & Review) Act
2001’ notes that a District Court may direct a person to attend and
give evidence in proceedings on an appeal against conviction if it is
satisfied:
a)
In the case
of an appeal that relates to an offence involving violence against that person,
that there are special reasons why, in the interests of justice, the person
should attend and give evidence, or
b)
In any
other case, that there are substantial reasons why in the interests of justice,
the person should attend and give evidence.
What happens in court?
A solicitor on behalf of the Director
of Public Prosecutions (DPP) will appear and they will give your lawyer as well
as the Court, a bundle of documents which is known as the ‘Appeal Bundle’ which
will include a cover sheet which summarises critical details which the District
Court Judge will need to be aware of and these details include (to name a few):
the details of the offence(s) as well as the maximum penalty for each offence,
transcripts of the proceedings, the date of the local court hearing, and many
other details.
Once the District Court Judge has
heard the appeal, the District Court can make one of the following decisions:
1.
Dismiss the
Appeal, OR
2.
Allow the
Appeal and Quash the Conviction imposed by the Local Court.
It is very important that you speak
with a lawyer so that you can get the appropriate legal advice which you
require prior to going to court.
Our team of experienced solicitors are there for you and can
help you answer all your questions, so be sure to contact Nicopoulos Sabbagh Lawyers.
*This article correctly reflects
the Laws of NSW as at 28th July 2022.
*Please
note that this page or any other pages on our website (including any other
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