Appealing the decision of the NSW Local Court in criminal and AVO cases

If you have attended the NSW Local Court for a Criminal Matter and/or an Apprehended Violence Order (AVO) and you are unhappy about the decision made by the Magistrate in your case, you may wish to consider an appeal to a higher Court.


The Crimes (Appeal and Review) Act 2001 (the Act) provides the legislative framework for appeals and reviews in relation to criminal proceedings dealt with summarily. Generally, in these circumstances, a right of appeal or review exists in relation to a conviction or sentence imposed by the Local Court.


Appealing the severity of the sentence


If you have been found guilty or pleaded guilty, and you believe that the punishment is excessive, an appeal can be filed with the District Court within 28 days of the Local Court handing down its decision. This is known as a severity appeal.


Once this appeal has been filed with the District Court, the conviction and/or penalty imposed by the Local Court is put on hold until such time as the District Court considers the appeal.


The District Court Judge will review the sentence imposed by the Magistrate of the Local Court and will hear evidence from you in person, as well as submissions made by other relevant parties. The District Court may vary, set aside, or dismiss the severity of the original decision.


Appealing against the conviction


If you have been convicted of an offence in the Local Court, you may appeal the conviction within 28 days of the Local Court’s decision. This is known as an ‘all grounds’ or ‘conviction appeal’.


Unlike a severity appeal, section 18 of the Act provides that an appeal against a conviction should be by way of rehearing the evidence given in the original Local Court proceedings. Section 18(2) of the Act allows fresh evidence to be given but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence is given.


Appealing Apprehended Violence Orders (AVOs)


Section 84(2) of the Crimes (Domestic and Personal Violence) Act 2001, provides that a defendant, applicant, or another relevant party may appeal the making, varying, revocation, or dismissal of an apprehended violence order (AVO).


Unlike other orders made by the Local Court, AVO’s are not automatically stayed (suspended). However, section 85(2) of the Act provides the defendant with the opportunity to apply to the Local Court to stay the operation of the AVO. The Court must be satisfied that is safe to do so, having regard to the need to ensure the safety and protection of the protected person or any other person.


What if you weren’t aware of the conviction or were hindered from taking part?


Part two of the Act provides individuals with rights with respect to obtaining an annulment by the Local Court of a conviction or sentence.


Section 8(2) of the Act provides that the Local Court must grant an application for annulment made by a defendant if it is satisfied:


  • that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or


  • that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or


  • that, having regard to the circumstances of the case, it is in the interests of justice to do so.


An application for an annulment must be to the Minister. If the Minister is satisfied that there is a question of doubt as to your guilt or liability, the Minister may refer the application back to the Local Court who will consider the application for an annulment. If annulled, a conviction or sentence ceases to have an effect and the Local Court must consider the matter afresh.


Can you get bail while waiting for your appeal?


If you received a sentence of imprisonment or home detention, you may apply to be released on bail until you appear at the District Court. If you are released on bail your sentence is stayed (suspended).


You can make an application for bail at the Local Court on the same date as you are sentenced and lodge your appeal or you can make it later.


If you need expert legal representation to appeal a Local Court decision, please contact Pannu Lawyers on 02 9920 1787. Pannu Lawyers are conveniently located in Blacktown and extensively practice Family Law, Criminal Law, Commercial Law and Conveyancing.

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