Taking it further: appealing from the District Court to the Court of Criminal Appeal

A District Court appeal from the Local Court is a rehearing. People who have been through one often assume the next level works the same way, and it does not. An appeal to the Court of Criminal Appeal is a fundamentally different exercise, with a different test, a leave requirement, and a genuine risk that the outcome gets worse rather than better.

Understanding what the CCA actually does – and does not do – is essential before spending money and hope on an application.

The right of appeal

The jurisdiction comes from the Criminal Appeal Act 1912 (NSW)). Section 5 provides that a person convicted on indictment may appeal against conviction on any ground involving a question of law alone; against conviction on a question of fact, or mixed law and fact, or on any other ground appearing sufficient, but only with the leave of the court or the certificate of the trial judge; and against sentence, with leave.

Notice the structure. Only a pure question of law comes as of right. Everything else – including every sentence appeal – requires leave. That threshold is not a formality, and a substantial proportion of applications fail at it.

The Judicial Commission sets out the framework in its sentencing bench book chapter on appeals), which is the standard reference on how these appeals are approached.

It is not a rehearing

This is the point that most needs emphasising. The CCA does not hear the evidence again, does not see the witnesses, and does not substitute its own view simply because it might have decided differently.

On a conviction appeal, the question is whether there has been an error – a misdirection to the jury, wrongly admitted or excluded evidence, a failure to leave a defence, or a verdict that was unreasonable or unsupported by the evidence. Even where error is established, the appeal may be dismissed if no substantial miscarriage of justice actually occurred. Section 6 governs the determination of appeals: where a conviction appeal is allowed, the court quashes the conviction and directs a verdict of acquittal to be entered, subject to the special provisions of the Act, which include the power to order a new trial.

On a sentence appeal, the question is not whether the sentence was heavier than the appellant hoped. It is whether there was specific error in the sentencing exercise – a wrong principle, a material fact mistaken, a relevant matter not taken into account, or an irrelevant matter taken into account – or whether the sentence is manifestly excessive. Manifest excess means the sentence falls outside the range reasonably open, not merely at the higher end of it.

The risk that runs the other way

Under section 6(3), on an appeal against sentence the court, if of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, must quash the sentence and pass that other sentence.

The power to increase is therefore express. In practice the CCA rarely exercises it on an offender’s own appeal, and convention requires the court to warn an appellant of any intention to do so, so that the appeal may be abandoned. But the power exists, and it means an appeal is never risk-free. The Crown also has its own right of appeal against sentence, and Crown appeals are a separate matter with their own principles.

Fresh evidence

Fresh evidence is admitted only in limited circumstances, and the test is demanding: the evidence must generally not have been available at trial with reasonable diligence, and must be capable of affecting the outcome.

There is a well-recognised exception on sentence appeals. Evidence of an offender’s progress towards rehabilitation since the sentence hearing is routinely received, on the limited basis that it may be taken into account if the court comes to re-sentence after establishing error. That is a genuinely useful principle – but it does not create a ground of appeal. Rehabilitation since sentence is not itself an error, and an application built on it alone will not succeed.

The grounds that actually succeed

It is worth being concrete about what error looks like, because the gap between a complaint and a ground is where most applications fail.

On conviction appeals, the grounds that succeed tend to involve identifiable rulings: evidence admitted that should have been excluded, particularly tendency and coincidence evidence; a direction to the jury that misstated an element or a defence; a failure to leave an available defence or an alternative verdict; or a refusal to sever counts that should have been tried separately. Unreasonable verdict grounds succeed occasionally, but the threshold is high because the jury saw the witnesses and the appellate court did not.

On sentence appeals, the specific error grounds are more productive than manifest excess. A sentencing judge who applied the wrong maximum penalty, misapplied a standard non-parole period, failed to apply an available discount, took into account an aggravating factor that was an element of the offence, or proceeded on a factual basis not open on the agreed facts has made an error capable of being identified and argued. Manifest excess, by contrast, requires persuading the court that the outcome itself is outside the range – which is a considerably harder argument to win.

Time limits and process

Strict time limits apply to filing a notice of intention to appeal and the appeal itself, with extensions available but not guaranteed. Preparation involves obtaining the transcript, the exhibits, the sentencing remarks and any judicial rulings, and identifying error with precision. Grounds must be particularised; a general complaint that the result was unfair is not a ground.

Where an appellant is in custody and the appeal has prospects, bail pending appeal may be sought, though it is granted sparingly. The interaction between bail and the stay of a sentence pending appeal is dealt with in section 63 of the Crimes (Appeal and Review) Act 2001 for appeals under that Act, and in section 77A of the Bail Act 2013 for enforcement.

Whether to appeal at all

This deserves an honest conversation rather than an optimistic one. The relevant questions are whether identifiable error exists, whether the sentence is genuinely outside the available range, what the realistic best outcome is, how much of the sentence will have been served before the appeal is determined, and whether a retrial – the usual consequence of a successful conviction appeal – is actually a better position.

For matters that began in the Local Court, the District Court appeal route is different and considerably more accessible, as our article on severity appeals in NSW and our guide to Local Court criminal appeals explain, and our case study on a District Court appeal producing a non-conviction shows what that jurisdiction can achieve. Costs questions also arise differently on appeal, as our guide to costs in NSW criminal cases sets out.

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An appeal to the Court of Criminal Appeal is not a second chance to argue the case. It is an error-based jurisdiction with a leave requirement, a demanding fresh evidence test, and an express power to increase a sentence. Applications succeed when error is identified precisely and argued narrowly.

At National Criminal Lawyers, we advise on and run appeals to the NSW Court of Criminal Appeal. We review transcripts and sentencing remarks properly before advising, we tell clients candidly when an appeal has no realistic prospects, and we particularise grounds rather than filing generalised complaints.

Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.