Whether it’s a sentence you consider too harsh or receiving a conviction you say you are not guilty of, an appeal is your last option to remedy the error. But not liking the result is not enough, you must not only find an actual error, but that error must be demonstrated in a way that makes the injustice obvious. Therefore, in both New South Wales and Queensland, appeal work is a very specialised area of law. 

It is important to remember that the appeal against being convicted might not necessarily lie with the judge or jury simply failing to recognise that the offending alleged was not proven beyond a reasonable doubt.  The appeal might be that the judge or jury dealt with certain evidence in a way that the law does not permit.  An early example of such a matter in which I was involved was the still referred to the case of Rodden v Regina [2008] NSWCCA 53. In this case, there was evidence given by the Crown of an alleged sexual relationship that existed between the accused and the alleged victim. This is a very dangerous type of evidence, and my view was that the trial judge failed to instruct the jury of the very limited use they could make of that evidence. Ultimately, the Court of Criminal Appeal agreed with that view and the appeal was successful because that evidence could (regardless of whether it did or didn’t) unlawfully influence the jury.

But there are, indeed, cases in which the appeal point will simply be that the jury must have got it wrong. I was involved in a case, and it was known as R v SCD [2013] QCA 352. In this case, there were five separate charges laid against the accused. All involved the same alleged victim and all relied primarily on her evidence. Yet for some inexplicable reason, the jury returned guilty verdicts for two charges and not guilty for the remaining three. The Court of Appeal agreed with us that there was no basis for the jury to make those findings of guilt. The appeal was allowed, and the accused was acquitted.

The importance of finding and clearly showing an error also applies in appeals against the severity of the sentence imposed. In some situations, like the case of R v Summers [2015] QCA 278 in which I was involved, appeals successfully rely on comparing the sentence complained about to similar matters to show how out of step with the law it is. In others, like the case of JFC v R, the appeal successfully rested on demonstrating that the original sentencing Magistrate fell into error when he failed to take into account those matters favourable to the accused that the law required him to do.

Whatever the type of appeal, it is abundantly clear that appeal courts are very reluctant to disturb what a jury or another court in the judicial system has done.  This just makes the task of anyone appealing that much harder.  These are just a few samples of the many appeals in both States in which I have been involved, and I am very happy to discuss with anyone the various aspects of any appeal they are considering.


Can I get bail while awaiting my appeal to be heard?

The answer to this question is quite complex. If the consequence of the conviction or sentence appealed against was that the accused was sentenced to a period of imprisonment, the need for bail may be obvious. But the resistance referred to in the previous paragraph is magnified when bail pending an appeal is being considered. A perfect example is taken from the case of R v Young [2020] QSC 75 where the court said:

…to order a stay of imprisonment before deciding an appeal is a serious interference with the due administration of justice….and to do so encourages unmeritorious appeals and undermines support for the judicial system in having recently sentenced persons walking free.

So, what you need to show is that your appeal is ‘odd on’ to succeed, and that if denied bail awaiting the appeal a substantial period of the term of imprisonment will have expired.  My view has always been that an appeal bail application can often be used as a ‘litmus’ test to determine the prospects of the actual appeal itself. In other words, if you are refused bail because the grounds you are alleging are not strong enough, there is very little point in proceeding with the appeal itself.

Anyway, these are just a few matters that arise in this very complex and ‘last chance’ area of criminal law. I am only too happy to field any questions that arise out of this or relate generally to appeals.

If you’ve found yourself in this situation, Contact Michael McMillan today at 0409 273 430.

Frequently Asked Questions

What are the grounds for filing criminal appeals?

Criminal appeals can be filed when certain legal grounds are met, indicating that a lower court’s conviction may have been erroneous. To pursue a criminal appeal, at least one of the following conditions must apply:

  • Juror misconduct: If any juror violates the rules of conduct during the trial, such as discussing the case or being under the influence, this can be a basis for an appeal.
  • Inadequate defence counsel: If a defendant’s previous defence attorney failed to provide effective representation, leading to an unfavourable outcome in the case, this can warrant an appeal.
  • Legal errors during the trial: This encompasses mistakes related to evidence, such as admitting inadmissible evidence or losing critical defence evidence. It may also involve misinformation provided to the jury or procedural errors during the case.

Who can file a criminal appeal?

The right to file a criminal appeal is available to all individuals who have been convicted of a crime. Nonetheless, it is crucial to emphasise the importance of seeking guidance from an experienced criminal lawyer before proceeding with an appeal.

The decision to file an appeal should not be taken lightly, as it involves a comprehensive assessment of the case’s merits and the legal grounds for challenging the conviction.

An experienced lawyer can evaluate the trial proceedings, evidence, and potential errors that may have occurred during the trial. They will determine if there are substantial legal grounds to support the appeal.

How long does the appeal process take?

The timeline for the appeals process is subject to several factors, leading to a variable duration. The complexity of the case, the appellate court’s caseload, and additional elements all contribute to this timeline. Generally, the appeals process can extend from several months to several years before a final resolution is achieved.

What happens after an appeal?

After an appeal, the outcomes and options include:

Successful Appeal: The court may order a retrial, modify the sentence, or acquit the defendant.

Unsuccessful Appeal: If the appeal is unsuccessful, options may involve seeking leave to appeal to a higher court or exploring other legal remedies, depending on the case’s circumstances and jurisdiction.