Our firm instructs and appears in Appeal matters in the County Court of Victoria and the District Court of New South Wales and, instructs in Appeal matters in the Court of Appeal of Victoria and the Court of Criminal Appeal in New South Wales.
Appeals can be filed on two bases: appeals against conviction and appeals against sentence.
- Conviction appeals are filed with the Court of Appeal when a person has pleaded not guilty at Trial and are ultimately convicted by a jury, or in the case of New South Wales by a jury or a judge sitting alone. The conviction appeal is filed because the person is of the view that:
- a significant error occurred in the Trial (either in the form of the evidence that was admitted, a mistake made by a party or a charge/summing up given by the judge at the conclusion of the Trial);
- new evidence has arisen since the Trial that significantly affects the safety of the conviction; or
because the convicted person argues that no reasonable jury properly instructed could have come to the verdict that was delivered.
Most recently, our firm instructed in the conviction appeal of Moustapha Dib. In 2012, he was convicted of murder and attempted murder after pleading not guilty at Trial. In February 2016, after exhaustive appeal proceedings, Moustapha was released from prison a free man, after the Court of Criminal Appeal unanimously overturned the convictions and entered verdicts of not guilty.
Our firm is regularly engaged in complex conviction appeals by those who argue that their trials were unfair and the jury’s verdict flawed. It is imperative that if your loved one has been convicted and incarcerated following a Trial that you immediately retain experienced criminal lawyers to commence the appeal process. In both Victoria and New South Wales, an accused person has 28 days to file the relevant notices to instigate appeal proceedings. If they exceed the 28 day period, they need tp apply to the Court to seek leave to appeal out of time, which increases the difficulty and cost associated with the proceedings.
With the exception of the most unusual circumstances, where compelling fresh evidence has arisen that raises overwhelming doubt about a verdict of ‘not guilty’, the Crown has no right of appeal in relation to a verdict of not guilty. In other words, the Crown cannot appeal a verdict because they do not like the outcome.
Sentence appeals are similarly filed with the relevant appeals courts. A person appealing a sentence handed down following a Plea or Trial can only do so if they can argue that the sentence was manifestly excessive or there was a palpable error in the sentencing process. Those considering appealing their sentence must be aware that in respect of each offence there is a sentencing range that applies. Different people may be sentenced to differing sentences for the same offence, depending on their circumstances, the objective seriousness of the respective offence and what prior convictions the person has. The Court of Appeal cannot reduce a sentence on the basis that the presiding appellate judges would have, personally, imposed a lower sentence. The sentence must be outside the range of available sentences (for example, a manifestly excessive term of imprisonment), or has been made on the basis of an error (for example the sentencing judge relied on fact or a feature of the offence that was not available on the evidence).
Similarly, the Director of Public Prosecutions may, within 28 days of a sentence being handed down, appeal the sentence because the Crown argues that it is manifestly inadequate. The Court of Appeal cannot increase a sentence on the basis that the presiding appellate judges would have, personally, imposed a higher sentence. The sentence must be outside the range of available sentences, on the lower end, before the Court will intervene.
The appeal process can be daunting, confusing and emotional for convicted persons and their families and many questions are usually asked about the avenues available once a Trial or Plea is over. The answers to these questions ultimately depend on the facts and circumstances of the individual case. However, if you or a family member is anticipating appeal proceedings, including those filed out of time, please contact our office for an appointment with one of our experienced lawyers.