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.
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