Appeals to the Court of Criminal Appeal — and Beyond

What the Court of Criminal Appeal is — and is not

Criminal Appeal Act 1912 (NSW), ss 5–6: a person convicted on indictment may appeal against conviction as of right on a question of law alone, and by leave on questions of fact or mixed law and fact; appeals against sentence require leave. The court allows a conviction appeal where the verdict is unreasonable, where there was a wrong decision on a question of law, or where there was otherwise a miscarriage of justice.

The Court of Criminal Appeal sits above the District and Supreme Courts and reviews their work: convictions after trial, sentences after trial or plea, and certain interlocutory rulings. It sits as a bench of three judges, and it decides appeals on the record of what happened below — the transcript, the exhibits, the summing-up, the remarks on sentence.

What it is not, is a second trial. Appeals are not second chances by right — they correct error. The court does not ask whether it would have reached a different verdict or imposed a different sentence; it asks whether the court below went wrong in a way the law recognises. That discipline shapes everything about how these appeals are assessed and argued, and it is the first thing an honest adviser will explain.

Leave — the threshold most appeals must cross

An appeal against conviction lies as of right only where the ground involves a question of law alone. Grounds involving questions of fact, or of mixed law and fact — which is to say, most grounds — require leave of the court. Appeals against sentence require leave in every case.

In practice the court usually considers leave and the merits together, but the requirement is not a formality. It means the appeal must be able to state, precisely, the error relied on: not "the sentence was harsh" but which principle was misapplied, which finding was not open, where the trial miscarried. Appeals framed as general grievances do not pass this threshold; appeals framed around a genuine, arguable error do.

The grounds

Conviction appeals

• Unreasonable verdict — the verdict cannot be supported having regard to the evidence; the question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt.
• Error of law — a wrong decision on a question of law: evidence wrongly admitted or excluded, a misdirection to the jury, a misconstruction of the offence.
• Miscarriage of justice — the residual ground, covering everything from procedural unfairness to the conduct of the trial itself.

One qualification must be stated alongside the grounds: even where an error is established, the court may dismiss the appeal if satisfied that no substantial miscarriage of justice actually occurred — the proviso. Identifying an error is necessary; it is not always sufficient.

Sentence appeals

A sentence appeal succeeds where the sentencing judge made an error of principle — taking into account an irrelevant matter, overlooking a relevant one, misapplying the statutory framework — or where, without any identifiable misstep, the sentence is manifestly excessive: outside the range reasonably open. The Crown may appeal on the mirror ground of manifest inadequacy, which is part of why sentence appeals are assessed soberly in both directions. Every matter turns on its own facts.

Time

The 28-day discipline that governs the rest of this area applies here too: a notice of intention to appeal, or the appeal itself, must be lodged within 28 days of conviction or sentence. The court can extend time, but extensions must be earned with explanation. The sound practice is straightforward — lodge the notice of intention within the window, which preserves the position while the transcript is obtained and the merits are assessed without haste.

The High Court — the rare summit

Beyond the Court of Criminal Appeal lies one further avenue: an application for special leave to appeal to the High Court of Australia. Special leave is granted sparingly, and on criteria that have little to do with the individual outcome: whether the case raises a question of legal principle of public importance, a conflict in the authorities, or a matter the interests of the administration of justice require the court to resolve. The High Court does not rehear facts and does not correct outcomes it merely disagrees with.

Most criminal matters end at the Court of Criminal Appeal. Where a case genuinely presents a special leave point, that is a significant piece of advice; where it does not, saying so plainly is part of the job.

How Lenz Legal approaches higher-court appeals

This work is record work. It begins with the full transcript and exhibits read closely — not summarised, read — and a written merits advice identifying the available grounds, their strength, and the realistic orders the court could make, including the risks of the proviso and of resentencing. Dean works with experienced appellate counsel where the matter warrants it, and prepares the brief so that counsel's time is spent on argument rather than reconstruction. For referring solicitors: matters are taken on referral with the referral relationship respected, and a frank merits view is provided before costs are incurred on a hearing.

If a conviction or sentence has been imposed in the District or Supreme Court and an appeal is under consideration, the merits conversation should happen while the notice of intention can still be lodged in time.

Higher-court appeals — your questions answered