Appeal Advice - Wrongfully Convicted?
Appeal against conviction or sentence from the District Court or Supreme Court to the Court of Criminal Appeal
How to appeal after being convicted in the District Court or Supreme Court
If you have been convicted (found guilty) by a judge or jury and sentenced in the District Court or Supreme Court and believe you are not guilty, that it is a wrongful conviction, you may be able to appeal against your conviction and sentence. The appeal will be heard by the Court of Criminal Appeal.
What is the process of a conviction appeal and a sentence appeal?
The first step is to file a Notice of Intention to Appeal (NIA). This must be done within 28 days after you have been sentenced. An NIA is a document telling the Court of Criminal Appeal that you plan on appealing.
You have 6 months to file the actual appeal. During this time it is important you have an expert criminal appeal lawyer review your trial transcripts in detail, consider grounds for your appeal and advise on the prospects of success of your appeal. The success of your appeal depends mainly on the particular grounds put before the Court of Criminal Appeal.
The next stage is to file the actual appeal. The Court will then set a date for your appeal. The Court requires a number of documents to be prepared by your lawyer before the hearing of your appeal. At the hearing of your appeal, your lawyers will make oral submissions to the Court and argue your case.
What orders can the Court make?
If you are appealing against your conviction the Court, among other things, can:
Allow the appeal, quash the conviction and direct a verdict of not guilty (an acquittal). This means the matter is finished.
Allow the appeal, remit the matter to the District Court for a re-trial. This means you will have a new trial unless the prosecution decides not to proceed with the prosecution. In certain circumstances, at this time a written request could be made to the prosecution asking the prosecution to withdraw the proceedings.
Dismiss the appeal. Even if the grounds are made out, the Court can dismiss the appeal if there has not been a miscarriage of justice.
If you are appealing against your sentence the Court, among other things, can:
Refuse leave to appeal against the sentence.
Grant leave to appeal, allow the appeal, quash the sentence and substitute it for a less severe sentence.
Grant leave to appeal but dismiss the appeal.
In certain circumstances, dismiss the appeal and substitute it for a more severe sentence.
The importance of using an expert appeal lawyer
Appeals to the Court of Criminal Appeal can be extremely complex. It is important that you hire an experienced appeal lawyer to handle your case. Hayden Woolf of Woolf Associates Solicitors has experience in appeal cases, is a passionate wrongful conviction lawyer, and works closely with Sydney’s top appeal barristers. Woolf Associates Solicitors will provide appeal advice on the grounds and the prospects of success. Contact Woolf Associates Solicitors if you wish to appeal against a jury verdict or appeal against a sentence.
Sentence appeal
In an appeal against sentence, it must be established that the sentencing judge made an error in the sentencing process. This principle comes from the case of House v The King (1936) 55 CLR 499 where the High Court said:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
The Court also must be satisfied that some other sentence is warranted in law and should have been imposed.
If the convicted and sentenced person has been sentenced to prison can he or she get bail before the hearing of his or her appeal?
It is very important that if you are sentenced to prison, and you believe this is an incorrect decision, that you apply for bail before your first appearance in the Court of Criminal Appeal. In making a decision whether to grant bail the judge will determine whether your appeal has a reasonably arguable prospect of success. If you do not apply for bail before your first appearance in the Court of Criminal Appeal you can still apply for bail while your appeal is pending, but the application will be heard by the Court of Criminal Appeal. To be successful in this situation you must prove to the Court that there are “special or exceptional circumstances.”
This article is of a general nature and is not intended to be relied on in any particular circumstance