There are two main types of appeal to the District Court, which are heard before a District Court judge. Those are:
- An appeal against a sentence imposed by a Local Court Magistrate whether it follows a defended hearing or a plea of guilty (known as a severity appeal);
- An appeal against a decision by a Local Court Magistrate that you are guilty of an offence following a defended hearing (known as a conviction appeal). A conviction appeal can also appeal sentence.
How do I lodge an Appeal?
A severity or conviction appeal can be lodged at either the registry of any Local Court or with the person in charge of the place where you are being held in custody.
A severity or conviction appeal must be lodged within 28 days after the sentence/conviction being imposed by the Magistrate. If the appeal is not lodged within 28 days, but before 3 months has elapsed, it is possible to apply to the District Court for leave to hear your severity or conviction appeal to proceed with your severity appeal.
What happens if I lodge an Appeal?
When an Appeal is lodged, any sentence, penalty or compensation, as well as any driver’s license disqualification or suspension, which arises as a consequence of the conviction, is stayed. The stay remains in force until the Appeal is finally determined. However, if you are sentenced to a term of imprisonment and refused bail, the gaol sentence continues to be in force. If the District Court affirms the decision of the Local Court then the days in custody on remand will count towards your sentence.
What happens at Court?
In the case of a severity appeal, the Director of Public Prosecutions will provide the judge with a bundle of documents including court attendance notices, police facts sheet, your criminal and traffic records, and any other documents that the magistrate had when they imposed the sentence including references. The judge will also be provided with the details of your sentence. You may be called to give evidence and fresh evidence can be tendered in support of your case.
In the case of a conviction appeal, the appeal is in most cases a rehearing on the basis of evidence given in the original Local Court proceedings. This means that an appeal will normally be determined by the Judge reading the transcript of the Local Court hearing followed by submissions made by your lawyer and the Director of Public Prosecutions. In order to call fresh evidence the leave of the District Court is needed. Leave will only be granted if the District Court is satisfied that it is in the interests of justice.
What happens at the end of the Appeal?
The District Court can:
- Quash the conviction and find you not guilty in the case of a conviction appeal;
- Set aside the sentence and vary the sentence in the case of a severity appeal;
- Dismiss the appeal and affirm the sentence or conviction.