There has been much controversy recently about George Pell’s conviction and appeal. This has piqued the interest of the public about what a appeal is and how appeals work. In this article we will briefly outline the appeals process in New South Wales and what an appeal is exactly.
What is an appeal?
An appeal is an action brought in court by a party to proceedings. This can be on numerous bases including an error of fact, an error of law, against conviction, the sentence is considered too lenient or too severe by a party.
In almost all cases, an appeal is heard by a higher level in the judicial system. For example, an appeal from the Local Court will generally be heard in the District Court. An appeal from the District Court or Supreme Court will generally be heard in the Court of Criminal Appeal. This process exists because the finding of the lesser court can only be overturned or amended by a court of higher jurisdiction.
Which is the highest court?
The highest court in Australia is the High Court of Australia or HCA. The HCA has original jurisdiction granted to it directly by Part III of the Constitution. In practical terms, this means that any appeal from any state or territory can be brought to the HCA to have a matter heard or reheard. The HCA is the final point of appeal in Australia. If a matter is successful or unsuccessful here there are no other ways to appeal.
The highest court in New South Wales is the Court of Criminal Appeal or CCA. This is the NSW equivalent of the court that heard Cardinal Pell’s latest appeal. The CCA can be made up of a lone justice or a full court of three justices.
The HCA and CCA have a broad range or powers to increase or decrease sentences, overturn conviction outright, uphold a conviction or even overturn a conviction and send it back to the original court to be reheard.
Can anyone apply for an appeal?
Yes and no. Anyone with a valid interest in a matter (called standing) is entitled to lodge an appeal for a range of reasons, some of which are outlined above. It is up to the court to decide whether they will “grant leave” for the appeal point raised by the party who makes the appeal application or the Applicant.
A practical example of this is found in Cardinal Pell’s appeal where the defence barrister sought leave to appeal on three grounds and the Court unanimously agreed to grant leave on only one ground (even though the Court disagreed 2:1 about the final outcome).
What do I do if I want to appeal?
It is almost always recommended that you have legal advice in your criminal law matters from the start. If you are unhappy with your result in court, you have 28 days to lodge an appeal in normal circumstances and up to 3 months with leave (or permission) from the appellant court. The clock starts ticking from finalisation of your matter by a Judge or Magistrate. To lodge an appeal you need to have a valid reason to appeal and lodge your appeal with the court registry. Generally the appeal should be lodged at the court which finalised your matter.
If you’re not happy with your outcome in court and want to look at lodging an appeal, call our professional lawyers at Whitfield|Legal on 1300 818 626 or fill out the form below for a confidential, free initial-consult and we can discuss your options today!