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Appeals

 

What is an appeal?

A criminal appeal is when you ask the Supreme Court to review your conviction (being found guilty) or your sentence (the penalty you receive), or both. You have to set out what your grounds of appeal are. The grounds of appeal are the reasons you say the conviction or sentence should be reviewed.

Who is the appellant?

The appellant is the person who is appealing.

Who is the respondent?

The respondent is the other side responding to the appeal. The respondent is usually represented by a lawyer from the Office of the State or Commonwealth Director of Public Prosecutions or the State Solicitor's Office.

What can the grounds of appeal be?

It is not enough to say that the conviction or sentence was unfair. To win your appeal you need to show a ground of appeal that is accepted by the law. This could be that the court made an error of law or an error of fact or imposed a sentence that was excessive. You should obtain legal advice on what grounds of appeal are available to you. 

Is there any time limit to appeal?

An appeal against a decision of the Magistrates Court must be made within 28 days of the date of the decision, or the date of sentencing, if that is later.  

An appeal against a decision of the District Court or Supreme Court must be made within 21 days of the date of the decision, or the date of sentencing, if that is later.

What if I am outside the time limit?

If you do not lodge your appeal within the time limit, you have to apply to the Supreme Court for permission to appeal outside the time limit. This is called asking for an extension of time. If you need to ask for an extension of time, you must do so at the same time as you lodge your appeal. You must also prepare an affidavit explaining why you did not lodge your appeal in time.

What is an affidavit?

An affidavit is a written statement containing facts. An affidavit has to be signed in front of a justice of the peace or commissioner for affidavits. They will ask you to swear that the contents of the affidavit are true and correct. Affidavits may be required to support applications of different kinds. 

Do I need legal advice before I appeal?

You should get legal advice about your grounds of appeal and your chances of success.

If you are appealing a Magistrates Court decision and you lose your appeal, you may be required to pay the costs of the other side.

You should be aware that even if you have good grounds of appeal and the appeal court agrees with them, it may still dismiss (refuse) your appeal if it thinks there was no substantial miscarriage of justice. This means that although the appeal court is accepting that a mistake occurred, it is not accepting that the mistake affected the final outcome.

Where can I get advice about whether I should appeal?

You should ask for advice from the lawyer who represented you when you were convicted or sentenced. If you were not represented by a lawyer in court, you should seek advice from a private lawyer or contact Legal Aid WA.  If you are in prison you can put your name down to see Legal Aid WA at the prison. You should explain to Legal Aid WA why you want to appeal.

Can I get a grant of legal aid to appeal?

You can apply for a grant of legal aid to appeal. Please attach a transcript of what happened in the court to your application for a grant of legal aid as this will help Legal Aid WA in making a decision about your application. If you already have an opinion from a senior lawyer about your grounds of appeal please also attach this to your application as this will also be taken into account.

To apply for legal aid, you should fill out a legal aid application form and either mail it to a Legal Aid WA office, or if you are in custody, put your name down to see Legal Aid WA at the prison and a form can be completed at that time. A decision will then be made to grant or refuse aid for your appeal.

For more information see Applying for legal aid.

What other help is available?

There are two Legal Aid WA kits designed to assist you if you want to appeal and you do not have a lawyer. One of the kits covers appeals from Magistrates Court decisions and the other covers appeals from District and Supreme Court decisions.

A PDF version of each kit, together with a word version of the forms and notices to be used with each kit, may be accessed by clicking on the following links:

How do I start my appeal?  

If your appeal is from a decision of the Magistrates Court, the appeal is to a single Judge in the Supreme Court. 

If your appeal is from a decision of the District or Supreme Court, the appeal is to the Court of Appeal. In each case, to start your appeal you need to provide a form called an Appeal Notice to the Supreme Court and ask for leave to appeal.  

What is leave to appeal?

Leave to appeal means permission from the Supreme Court to appeal. You must ask for leave to appeal and be granted it for your appeal to be considered. You apply for leave to appeal when you send your appeal notice to the Supreme Court.

At least one of your grounds of appeal must have a reasonable prospect of succeeding for leave to appeal to be granted.

What is the Court of Appeal?

The Court of Appeal decides appeals from decisions of the District or Supreme Court. It is made up of three judges of the Supreme Court. It also deals with appeals from decisions of a single Supreme Court Judge, where the single judge has made a decision on an appeal from a Magistrates Court. 

Additional requirements for Magistrates Court appeals

If you are appealing a Magistrates Court decision, you also need to provide the Supreme Court with a copy of:

  • the prosecution notice
  • the transcript of proceedings in court, and
  • any other record the court will need to decide the appeal (for example your criminal record, the statement of material facts, your record of interview with police).

If you cannot get all of these documents before the time limit ends, you should still file your appeal notice at the court in time and let the court know that you have requested these documents. You should then provide them to the court as soon as you get them.

What is a prosecution notice?

In the Magistrates Court the charge or charges are written on a document called a prosecution notice.

What is the transcript?

The transcript is the typed record of what was said in court at the trial or during sentencing. Everything that is said in court is recorded on tape and then transcribed into typewritten form on paper.

How do I get the transcript?

You need to ask for a copy of the transcript from the court where you were convicted or sentenced.

There is usually a fee per page for the transcript, however, if you are in custody you can ask that you not have to pay it. This is called asking for the fee to be waived.

You should direct your enquiries to the transcripts clerk in the Magistrates Court. If you are having difficulty obtaining the transcript then you should write to the Supreme Court to explain this. 

Do I have to give copies of documents to anyone?

A copy of any document you lodge with the court must also be served on (given to) the respondent. This is usually the Office of the State or Commonwealth Director of Public Prosecutions or the State Solicitor's Office.

You must serve the documents in person, but if you are in custody you may post them.

In the case of the Appeal Notice and any affidavit or other document you have lodged with the court at the same time as the Appeal Notice, once they are served on the respondent, you must send a service certificate to the Supreme Court confirming that you have served them. A service certificate is not required for any other documents you might serve on the respondent. 

What happens after I send my appeal documents to the Supreme Court?

Your appeal documents will be given to a single judge for a decision to be made whether to grant you leave to appeal. At the same time as considering your application for leave to appeal, the judge will consider any application for an extension of time and any application for bail.

The application for leave to appeal may be decided on the basis of the documents alone, without hearing from you or the other party. Alternatively, the judge may wish to hear submissions from you and the other party before making a decision.

At least one of your grounds of appeal must have a reasonable prospect of succeeding for leave to appeal to be granted.

If you are granted leave to appeal, your appeal will then be considered fully. This will usually happen at a hearing where you will be able to make submissions. 

What can I do if leave to appeal is refused?

If your application for leave to appeal is refused you can ask for a review of this decision. Time limits apply so if you wish to ask for a review, you should get legal advice as soon as possible to check whether you have good reasons for asking for a review. 

Do I have to provide anything else to the court once I am granted leave to appeal?

Before the hearing of your appeal against a Magistrates Court decision, you will be required to prepare an Outline containing:

  • written submissions
  • a list of authorities, and
  • a chronology.

Before the hearing of your appeal against a District or Supreme Court decision, you will be required to prepare an Appellant's Case containing:

  • written submissions
  • a list of authorities
  • a chronology
  • orders sought, and
  • a draft appeal book index.

The documents contained in the Outline or the Appellant's Case must be lodged with the court and must also be served on the respondent.

What are written submissions?

A submission is a summary of the legal argument supporting your case. In an appeal, the court may ask that both you and the respondent provide written submissions to the court. The judge or judges will read these submissions before the appeal is considered. 

Copies of the submissions also need to be provided to the other side in the appeal. This means that you need to send a copy of your submissions to the respondent and you should receive a copy of the respondent's submissions.

What are authorities?

These are decisions by courts that show the law on particular issues. Lower courts must follow decisions by higher courts. The Magistrates Court is at the lowest level in the court system. The District Court is the next level up, followed by the Supreme Court, the Court of Appeal and then finally the High Court. Decisions of the High Court and the Court of Appeal are therefore the most useful authorities to have.

What is a chronology?

This is a timeline of events related to the grounds of appeal.

What is an appeal book?

An appeal book is required for appeals against District and Supreme Court decisions only. It contains all the documents relevant to the appeal. An appeal book index lists all of these documents. 

Can I get bail while I wait for my appeal to be heard?

If you are in custody when you lodge your appeal, you can ask for bail until your appeal is decided. To do this, you need to lodge a form with the court asking for bail at the same time as you lodge your appeal notice. This needs to be supported by an affidavit. Your application for bail will then be listed in the Supreme Court for you to ask the judge for bail.

If you are appealing from a Magistrates Court decision, bail will be considered as if you were awaiting an appearance in court before conviction. If you are appealing from a District or Supreme Court decision, to get bail you will need to show that there are exceptional reasons why you should not be kept in custody. You will also need to convince the judge that there is no chance of you committing any offences once you are released from jail, and that your grounds of appeal have a very good chance of success. 

How long do I have to wait for my appeal hearing?

There may be a significant waiting time before your hearing date due to the number of cases that need to be heard. Your appeal will be heard more quickly if it is placed into the expedited list.

What is the expedited list?

The expedited list is a group of appeal cases that are classified as requiring special urgency, for example because the person appealing is suffering from a terminal illness. 

What happens at the appeal hearing?

At the hearing you will be given an opportunity to explain your grounds of appeal and make it clear why you say there were errors made in the conviction or sentence you were given. The judge or judges may stop you if you move away from the relevant legal points.

The respondent will then reply to the points that you have raised. 

After both parties have had their say, the judge or judges will either make a decision on your appeal straight away or on a later date. If they decide to give the decision on a later date it is called a reserved decision

Can I stop my appeal?

You can stop (discontinue) your appeal at any time by lodging a Discontinuance Notice, however, you must pay the costs of the appeal unless the appeal court says that you do not have to. 

What can the appeal court do?

The options for the appeal court when deciding your case are as follows:

  • allow your appeal
  • refuse (dismiss) your appeal
  • set aside or vary the decision
  • substitute another decision
  • send the case back to be dealt with again, or
  • make any other order that the appeal court thinks fit.

If you are appealing a Magistrates Court decision and the appeal court refuses (dismisses) your appeal, then you may be required to pay costs. 

What is an e-appeal?

An e-appeal is an electronic appeal. The documents used by the Supreme Court, including the appeal book, are scanned onto a computer for easy reference. At the hearing of the appeal everyone in court has a computer screen in front of him or her. As a particular document is referred to, that document will be brought up on the computer screens in the court.

 

Last reviewed: 16/04/2013

Last Modified: 16/04/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.