To appeal, you must complete a Notice of Appeal to the District Court form.
In your form, you must state the general grounds (the reason) for your appeal.
Once you have completed your form you must file it at a Local Court registry and pay the filing fee.
If you file your form by post, fax or email, it won’t be processed until you have paid the filing fee.
If you are experiencing financial hardship, you may be able to apply to have your fee postponed, waived or remitted.
Once the registry has processed your form, it will notify you when your appeal will be heard. The registry will also notify the police and the Director of Public Prosecutions, who will represent the police at the appeal.
Leave to appeal
You will need to seek leave (permission) of the District Court to appeal more than 28 days after, and within three months of, the Local Court’s decision.
How to apply
You need to complete an Application for Leave to Appeal.
You can get a copy of this form from:
- your nearest Local Court
- the
Forms page on the Local Court of NSW website.
In your form, you must explain why you didn’t file an appeal within 28 days.
You must file this form at the same time you file your Notice of Appeal to the District Court.
The Court’s decision
After hearing your application, the Court may:
- dismiss your application, or
- grant you leave to appeal.
The Court will grant you leave to appeal if it is in the interests of justice to do so.
If the Court grants you leave, it may hear your appeal immediately or adjourn your matter to another day.
You must be ready for the Court to hear your appeal straight after it grants you leave.
Costs
If the Court dismisses your Application for Leave to Appeal, it can make a costs order against you. This means you may have to pay the legal costs of the prosecutor.
Stay of sentence
If you appeal within 28 days, your sentence will be stayed (stopped) until your appeal is heard.
If you apply for leave to appeal after 28 days but within three months, your sentence will be stayed when you are granted leave.
This includes the suspension or disqualification of your licence, if your licence was suspended or disqualified after you were sentenced.
If your licence was suspended before you went to court, because of the offence, the suspension won’t be stayed when you file an appeal. For example, if police charged you and gave you an on-the-spot suspension. However, the Court can order that your suspension be stayed if it is appropriate in the circumstances.
You should check with the Registry whether your sentenced will be stayed until your appeal is heard.
If your licence was suspended or disqualified, you should check with Transport for NSW (TfNSW) that the suspension or disqualification has been stayed before you drive again. If you surrendered your licence, you must get a new licence before you can start driving again.
Bail
If you were sentenced to gaol, including home detention, you may be able to apply to be for bail until your appeal is heard.
You can do this on the day you are sentenced or afterwards.
You may want to apply for bail if you think the District Court will give you a more lenient sentence, that doesn’t include gaol.
You may not want to apply for bail if you think the District Court will sentence you to gaol. The time you spend in gaol before your appeal is heard will count towards your sentence. If you don’t apply for bail, you may finish your sentence sooner than if you apply for, and are granted, bail and then sent back to gaol.
Before you apply for bail, you should get legal advice.
The hearing
What will happen at the hearing will depend on whether you are appealing:
- your conviction
- your sentence, or
- both.
Appeal against conviction
If you appeal your conviction, your appeal will be a re-hearing of the evidence that was given at the first hearing. The Court will look at the documents and other items tendered and the transcripts from the first hearing. The lawyer for the DPP will provide the documents from the first hearing to the Court. The Court will also hear submissions from yourself and the lawyer for the DPP.
In limited circumstances, the Court can allow new evidence to be admitted but only where it is in the interests of justice to do so.
You are entitled to one free copy of the transcript of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.
To get a copy of the transcript from the Local Court hearing, you can:
- apply through the Online Registry website, or
- complete a Transcript Order Form.
For more information, see Transcripts on the Local Court of NSW website.
Appeal against sentence
If you appeal your sentence, your appeal will be a re-hearing of the evidence that was given at the first hearing. You can also introduce fresh evidence.
The Court will look at the documents and other items tendered and the transcripts from the first hearing. The lawyer for the DPP will provide the documents from the first hearing to the Court. The Court will also consider any fresh evidence and submissions that you or the lawyer for the DPP provide.
If you have witnesses who are going to give evidence, you must make sure they come to court. If you are concerned about your witnesses not coming to court, you may be able to subpoena them.
Your witnesses may be cross-examined by the lawyer for the DPP.
Warning before increasing your sentence
If you have appealed against your sentence to the District Court, the Court must warn you if it is considering increasing your sentence. This is known as a ‘Parker warning’.
The Court must give you the opportunity to withdraw your appeal. If you withdraw your appeal, the decision of the Local Court will apply.
The Court doesn’t have to warn you if the Crown has appealed your sentence, because you can’t withdraw the Crown’s appeal.
Legal representation
You don’t need to have legal representation at your appeal. You can represent yourself.
If you want to have legal representation, you may:
- be eligible for a grant of legal aid
- be eligible for advice and/or representation from a Community Legal Centre
- speak to a private lawyer.
The decision
Appeal against dismissal of Annulment Application
If you appeal the Local Court’s decision to dismiss your Annulment Application, the Court may:
- grant your application and send your case back to the original court to be re-heard, or
- dismiss your application.
Appeal against conviction
If you appeal your conviction, the Court may:
- set aside your conviction
- set aside your conviction and send your case back the original Court for redetermination
- dismiss your appeal.
If your appeal is dismissed, your sentence will take effect.
If you were sentenced to gaol by the Local Court, and granted bail while your appeal was heard, you will be taken into custody.
Appeal against sentence
If you appeal your sentence, the Court may:
- set aside your sentence
- vary your sentence
- dismiss your appeal.
If your appeal is dismissed, your sentence will take effect.
If you were sentenced to gaol by the Local Court, and granted bail while your appeal was heard, you will be taken into custody.
Costs
A court may make a costs order against you if your appeal is dismissed.