Appeal laws in NSW
- Daniel Wakim
- July 25, 2023
- 5 minute read
Appeals in NSW: A Comprehensive Guide
Appeals play an important role in ensuring fairness and justice within the Australian legal system.
More specifically, in New South Wales (NSW), there are well-defined rules and procedures that govern the appeals system, formally known as the “appellate” process.
As expert Criminal Lawyers, we’ve put together a comprehensive summary of these rules, focusing on the current NSW Criminal Law framework and its implications for the general public. Our goal here is to provide general information on this subject – so this should not be taken as personalised legal advice.
The Right to Appeal
The right to appeal is a fundamental component of the legal system in NSW (and many other common law systems), and is designed to protect you from injustice.
It ensures that if you are involved in a legal matter, you have recourse when you believe an error has occurred in a Legal Court’s decision – a right is enshrined in legislation via the Crimes (Appeal and Review) Act 2001.
Grounds for Appeal
Notable cases on the matter, such as Bugmy v The Queen (2013), have clarified that ‘error identification’ is a prerequisite for the Court’s intervention – that is to say, an appeal can only occur in the case of an error of law, rather than just a sense of dissatisfaction with a previous ruling.
Under such circumstances, both the prosecution and the accused have the right to appeal against a sentence or a conviction, subject to specific limitations and procedural requirements. This principle ensures that appeals focus on substantive legal issues rather than re-arguing the facts of a case.
The Court Hierarchy
Appeals in NSW are heard at two primary levels of courts: the District Court and the Supreme Court.
On one hand, the District Court acts as the initial appellate level for cases originating from the Local Court. The Supreme Court on the other hand exercises broader jurisdiction in reviewing decisions from the
Ultimately, the powers and procedures of these respective courts can be found in the Crimes (Appeal and Review) Act 2001 or equally in the rulings of landmark cases like DK v Director of Public Prosecutions (2021) and Hollingsworth v Bushby (2015) which have each shaped the interpretation and application of Appellate processes in NSW.
The Residual Discretion to Intervene
So, are Appellate courts forced to hear an appeal?
Even if an error is successfully established in an appeal, the Appellate Court has a residual discretion to refuse the appeal or decline to intervene.
- the appropriateness of the intervention
- the extent of variation required in the sentence (if insignificant they may decline)
- considerations of rehabilitation and consistency
Ultimately, the court’s discretionary power has been designed and implemented to establish clear sentencing principles, achieve consistency in common law, and maintain the integrity of the NSW legal system. In fact, the discretion to intervene is also present in other legal issues – for example, when it comes to bail review hearings.
Resentencing After a Successful Appeal
When an appeal against a sentence in NSW is successful, the Appellate Court proceeds to resentence the respondent.
When doing so, the court considers all relevant facts and circumstances available at the time of resentencing, including events that have occurred since the original sentencing.
Section 21B(4) of the Crimes (Sentencing Procedure) Act 1999 guides the court in ensuring that resentencing aligns with prevailing sentencing patterns and practices at the time of the original sentencing to foster consistency and fairness in the system.
Alternatives to an Appeal
If you’re concerned about being refused an appeal, it’s important to know that there are other options potentially available to you.
Alternative to the traditional NSW Appellate Process, individuals also have the option of seeking judicial review. This however is only available in cases where there are concerns about jurisdictional errors or procedural fairness, as opposed to errors of law.
This power is granted by Section 69C of the Supreme Court Act 1970 which allows for the review of determinations made by the District Court regarding convictions, orders, or sentences imposed by the Local Court.
Why is it important to seek professional legal advice?
The above is intended as general information only.
If you’re facing criminal charges or are seeking to appeal a Court’s decision, we understand that this can be an overwhelming and daunting time.
To protect your best interests and achieve the outcomes you deserve, you need to be supported by professional Criminal Law experts who can answer your questions, provide tailored advice and effectively present your case fairly in Court.
This is where our team at Daniel Wakim Law Firm can help.
As experienced NSW Criminal Law Practitioners, we offer expert legal assistance by managing and liaising with the police and advising you of your rights at every step along the way. Our goal is to help you navigate your situation so that you can make the right decisions, all without being influenced purely by emotion.
Gain clarity, certainty and confidence when navigating the Appellate Process
At Daniel Wakim Law Firm, we can advise of your rights and assist in managing your criminal case to help you achieve a just result.
So, whether you’re looking to have an initial chat about your own matter, or you require ongoing support and assistance for your clients, we’re more than ready to assist you.
Just book a no-obligation, free discussion today to discuss your needs.