If you have been found guilty after trial and consider there was an error made during the trial, or if you have been sentenced and consider the sentence imposed was too harsh you have the option to appeal those decisions. It is recommended that you seek legal advice as soon as possible if you are considering appealing your conviction and/or sentence, noting there are strict time limits that apply.
How long do I have to Lodge an Appeal?
You have one (1) calendar month from your conviction or sentence date to appeal the decision. (Example; if you are sentenced on 14 June, you have until 14 July to appeal). If the appeal is lodged outside of this time frame, you generally cannot appeal. The only time the courts would allow an appeal outside of the time frame, is if you are able to successfully apply for leave to appeal ‘out of time’. That application is considered separate to the appeal and also requires an additional form to be filed so it is recommenced you seek legal advice if you are in that position.
It can be months before the court can hear your appeal, particularly if the matter has gone to the Court of Appeal. If you are in custody during this time, you may be able to apply bail, though it is not common. If you are in custody and required to apply for parole, you are unable to submit the application until your appeal has been determined.
Where will my appeal be heard?
The court your appeal will be heard in will depend on where you were convicted. If you were convicted and sentenced in the Magistrates Court, you will appeal the decision to the District Court where there will be a judge sitting alone to hear your appeal. If you were convicted and sentenced in the District or Supreme Court, you will then need to appeal to the Queensland Court of Appeal. In this court, three (3) Court of Appeal Justices will hear your case. There are no juries involved in appeals.
What can be Appealed?
You can appeal against a conviction (finding of guilty after a summary hearing or trial) or the sentence imposed. The Crown cannot appeal a jury’s verdict of not guilty, but they can appeal the sentence if they consider it was too lenient. They can also appeal decisions made at a pre-trial hearing, such as if a Judge has excluded evidence on application made by Defence.
You do need to set out the grounds of appeal when the Notice of Appeal is filed and generally need to demonstrate an error by the original Magistrate or Judge. If your appeal against conviction is successful the court will in most cases order a re-trial. In some cases they will order that you be found not guilty without the need for a re-trial. If an appeal against sentence is successful, the court will usually impose the new sentence as part of the appeal. In some cases they will refer the matter back to the original Magistrate or Judge to impose sentence with a finding as to what the error was so that won’t be made again.
In most cases the appeal court is not hearing the original case again, rather they are focused on whether there was an error in the original hearing or trial that led to a miscarriage of justice, or a sentence that was manifestly excessive in the circumstances. You are required to apply for leave of the court if you wish to admit new evidence.
Who can appeal in criminal cases?
Only the parties involved in a matter can appeal. In criminal case that is the defendant and the Crown. If a victim or other witness is unhappy with a result they do not have standing to appeal the decision.
This post contains general advice only and is not intended as legal advice.