Review and Appeals

[52-000] Introduction

Last reviewed: November 2023

The principal Act dealing with appeals and reviews is the Crimes (Appeal and Review) Act 2001 and, unless otherwise specified, all references to sections in this chapter relate to this Act. Matters dealt with under this Act include the following:

  • criminal appeals to the District Court, Supreme Court, Land and Environment Court

  • review by the Local Court of Local Court decisions, including AVOs,

  • appeals in relation to application notices commenced under the Local Court Act 2007.

[52-020] Local Court review of Local Court decisions

Criminal

The relevant provisions are found in ss 4–10 Pt 2 Crimes (Appeal and Review) Act.

The main features include:

  • the application for annulment of conviction or sentence is to be made to the same Local Court: s 4(1).

    Note:

    Although the hearing of the application must take place at the same court where the original decision was made, an application can be filed at any Local Court registry.

  • it must be made within two years of the conviction or sentence: s 4(2)

  • it can be made by the defendant only if the defendant was not before the court when the conviction or sentence was imposed (s 4(1)) and the court is satisfied in a defendant’s application that the defendant was unaware of proceedings, was hindered by accident, illness, misadventure or other cause or it is in the interests of justice to do so: s 8(2)

  • the Local Court may on its own motion in the interests of justice annul a conviction or sentence made or imposed by the court if the defendant was not before the court when the conviction or sentence was imposed: s 4A

  • the Local Court must grant an annulment application by a defendant if satisfied the defendant was not aware of the proceedings until they were completed, or was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original proceedings: see s 8(2)

    Note:

    The provisions of this subsection should be widely construed, and the word “misadventure” read widely. See Miller v DPP [2004] NSWCA 90 at [39].

  • an annulment application by the prosecutor must be granted if the court is satisfied that, having regard to the circumstances of the case, there is just cause for doing so: s 8(1)

  • an annulment may be granted in relation to a finding of guilt made by the Local Court, whether or not the court proceeds to conviction: s 10A.

    Note:

    “sentence” is defined in s 3. “Conviction” is only defined insofar as it relates to Children’s Court proceedings: s 3(2)(a).

  • the application can be dealt with in open court, in the presence or absence of the parties or in private: s 7

  • a defendant may not make an application for annulment if a written plea of guilty was submitted pursuant to s 182 Criminal Procedure Act: s 4(1B).

Sometimes a defendant will make an application to annul a conviction believing it is necessary so as to potentially seek a non-conviction order on sentence. However, it is not necessary. Where a court, dealing with an absent defendant, records a conviction or finding of guilt and issues a warrant, there is no bar to a defendant when subsequently facing sentence being dealt with “without conviction”. For the meaning of “conviction”, see DPP v Arab [2009] NSWCA 75 at [31]–[36].

A defendant who does not appear but is represented by a lawyer at the time of conviction or sentence cannot make an annulment application. A defendant may appear personally or be represented by an Australian legal practitioner: ss 3 and 36 Criminal Procedure Act; McKellar v DPP [2014] NSWSC 459 at [34].

The history and application of s 8 was considered in Miller v DPP, above, which examined the predecessor to s 4 (namely s 100K Justices Act 1902). The court offered the following guidance:

The use of the word “hindered” is instructive. It does not only mean “prevented” but also “impeded” or “obstructed” [at [25]]

…

something more or less difficult but not impossible [at [40]].

In considering the words “taking action in relation to the relevant proceedings”, the court said at [41]:

it would seem that the legislature has chosen wide vague words with the intention that if the defendant is hindered by misadventure or otherwise from doing some act or thing in relation to the proceedings not limited to attending court, then a magistrate would have jurisdiction under the section to annul the conviction or sentence.

Review of apprehended violence orders

Section 84 Crimes (Domestic and Personal Violence) Act 2007 provides that a defendant may make an application under Pt 2 Crimes (Appeal and Review) Act for the annulment of an apprehended violence order in the same way as a defendant may make application for annulment of conviction or sentence arising from a court attendance notice dealt with under the Criminal Procedure Act.

Section 84(1B) Crimes (Domestic and Personal Violence) Act provides that the court may grant an annulment if it is satisfied that there is just cause to do so.

The section also provides a right of appeal to the District Court.

Review and appeal provisions — application notice proceedings

The Local Court Act contains the provisions relating to commencement of proceedings by way of application notice. It also contains the appeal provisions. Section 70 Local Court Act provides that an application for annulment of an order may be made in accordance with the Crimes (Appeal and Review) Act. The section also provides for appeals to the District and Supreme Court in the same way.

[52-040] Appeals to Supreme Court

Last reviewed: November 2023

The law relating to criminal appeals to the Supreme Court is set out in Pt 5 Crimes (Appeals and Review) Act 2001. Appeals from civil claims decisions are found in s 180 Civil Procedure Act 2005.

Appeals may be made against a conviction or sentence on questions of law and/or fact, and the leave of the Supreme Court is required in respect of appeals involving a question of fact: ss 52(1), 53(1). A “conviction” includes a finding of guilt without formal order of conviction: Darlington v DPP (NSW) [2023] NSWSC 1139 at [9]–[12]; Selkirk v DPP [2020] NSWSC 1590 at [27]–[28].

An appeal is instituted by filing a summons. It must be instituted within a certain time. If a party is unable to institute the appeal within the stipulated time, the party may seek an extension of time. If the application is made within the time fixed, a magistrate may extend the time: r 6 Pt 51B Supreme Court Rules 1970.

A magistrate may revise a transcript of reasons for a decision, by altering the transcript where the reasons expressed do not reflect what the magistrate meant to say; or where there is some infelicity of expression which the magistrate wishes to change, however, the substance of the reasons may not be changed: M Gleeson, “Revising Transcripts of Summings-up” (1997) 9(4) JOB 25. If a magistrate wishes to consider whether to revise a transcript, the registrar should be requested to inform the party instituting the appeal, that the magistrate intends to review the transcript to determine whether it should be revised. The party instituting the appeal should be informed of the magistrate’s decision within the time frame set under r 6 Pt 51B Supreme Court Rules. A copy of the transcript should be obtained through the registrar.

The execution of a sentence is stayed when a notice of appeal is given, unless the appellant is in custody. Subject to certain qualifications in s 63(2A), so too is any licence disqualification or suspension which operated automatically upon conviction for an offence: s 63(2C). If the appellant is in custody, sentence is stayed when the appellant is entitled to be released on bail under s 14 Bail Act 2013, or bail is dispensed with: s 63(2)(c).

A copy of the summons instituting the appeal will usually be sent to the magistrate who made the determination. When the Supreme Court determines the appeal, the court may remit the matter to the magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal: s 55. On receipt, the magistrate should request the registrar where the proceedings were held to list the matter.

[52-060] Appeals to District Court

The law relating to appeals to the District Court is set out in Pt 3 Crimes (Appeal and Review) Act.

The execution of a sentence is stayed when a notice of appeal is given, unless the appellant is in custody. Subject to certain qualifications in s 63(2A), so too is any licence disqualification or suspension which operated automatically upon conviction for an offence: s 63(2C). If the appellant is in custody, sentence is stayed when the appellant is entitled to be released on bail under s 14 Bail Act 2013 or bail is dispensed with: s 63(2)(c).

Appeals to the District Court against conviction or sentence may be made within 28 days or within three months from conviction or sentence by leave of the District Court: ss 11 and 12. For a discussion of the operation of these provisions and the powers of the District Court on appeal, see Huynh v R (2021) 105 NSWLR 384 at [22]–[35].

Appeals against sentence are by way of rehearing of evidence: s 17. Appeals against conviction are by way of rehearing on the transcripts of evidence, subject to a grant of leave to call fresh evidence or for witnesses to attend: s 18.

When the District Court determines an appeal, it does not have the power to remit the matter to the magistrate who made the determination.

[52-080] Civil appeals

The provisions for appeals in civil matters are found in Pt 50 Uniform Civil Procedure Rules 2005. An appeal does not operate to stay (see Civil Trials Bench Book Stay of execution at [9-0000]) at the proceedings in the Local Court unless ordered by the appellate court or the Local Court: r 50.7 Uniform Civil Procedure Rules.

[52-100] Appeals to Land and Environment Court

The law relating to appeals to the Land and Environment Court is set out in Pt 4 Crimes (Appeal and Review) Act 2001.

The execution of a sentence is stayed when a notice of appeal is given, unless the appellant is in custody. If the appellant is in custody, sentence is stayed when the appellant is entitled to be released on bail under s 14 Bail Act 2013 or bail is dispensed with: s 63.

When the Land and Environment Court determines an appeal, it does not have the power to remit the matter to the magistrate who made the determination.

[52-120] Bail pending appeal

Section 8 Bail Act 2013 effectively allows for a bail decision to be made while substantive proceedings for an offence, including any appeal against conviction or sentence, are in progress. A previous grant of bail ceases to have effect when proceedings for an offence at first instance conclude, but a fresh bail decision can be made if an appeal is lodged: s 12.

Section 18(j) Bail Act provides that when determining the existence of any unacceptable risks for the purpose of a bail decision, in a case where proceedings on an appeal against conviction or sentence are pending, one of the required considerations is “whether the appeal has a reasonably arguable prospect of success”. The argument in favour of bail will be stronger where there is a real likelihood that a person could serve a significant proportion of the sentence prior to their appeal being heard: see DPP (Cth) v Cassaniti [2006] NSWSC 1103.