In the Australian legal system, a person who has been convicted of an offense or sentenced to a penalty they feel is unfair is entitled to appeal. It is important to note, however, that there is a difference between appealing a conviction and appealing a sentence. Both legal procedures have different objectives and different legal reasons for success.

This article discusses the main differences between these forms of appeals, the law that regulates them, and what people must take into account when pursuing litigation in Australia.

What is an Appeal in Australian Litigation?

An appeal is a judicial process where a higher court examines the ruling of a lower court. An appeal does not happen automatically; an applicant is required to show a legal ground for the appeal. In Australia, appeals are usually taken to the Court of Appeal of the applicable state or territory's Supreme Court, the Federal Court of Australia, or, exceptionally, the High Court of Australia.

Most Important Principles of Appeals:
  • Appeals are not retrial but review of errors of law.
  • Appeals have to be made on strict grounds of law.
  • The appeal court can confirm, reverse, or change the decision of the lower court.
  • There are strict time limits in which an appeal can be made.

What is a Conviction Appeal?

A conviction appeal is a judicial process by which a convicted person appeals against the guilty verdict itself. This appeal claims that a legal mistake, factual error, or procedural injustice resulted in an unjust conviction.

Reasons for a Conviction Appeal:
  • Mistakes in Law – If the trial judge has misapplied or misinterpreted the law.
  • Mistakes in Fact – If the jury or magistrate made an unreasonable or unfounded conclusion.
  • New Evidence – If new, persuasive evidence comes to light that was not discovered at the time of trial.
  • Unfair Trial – If there was a serious procedural flaw, for example, bias or admission of improper evidence.

Possible Consequences of a Conviction Appeal:
  • The conviction is reversed, resulting in an acquittal.
  • A retrial is ordered.
  • The appeal is rejected, and the original conviction remains.

Example of a Conviction Appeal CaseIn R v Pell [2020] HCA 12, Cardinal Pell appealed his historical child sexual offense conviction. The High Court of Australia held the verdict of the jury was unreasonable because of not having enough evidence and overturned the conviction.

What is a Sentence Appeal?

A sentence appeal does not challenge the conviction itself but contests the penalty. This kind of appeal contends that the sentence was excessive (severity appeal) or inadequate (prosecution appeal).

Reasons for a Sentence Appeal:
  • Excessive Sentencing – If the punishment is not commensurate with the gravity of the offence.
  • Inconsistency with Sentencing Guidelines – If the sentence is not consistent with comparable cases.
  • Judicial Error – Where the judge in sentencing made a legal error.
  • New Circumstances – Where new evidence in mitigation appears.

Possible Sentence Appeal Outcomes:
  • The sentence is lowered.
  • The sentence is upgraded (in the case of a prosecution appeal).
  • The appeal fails, and the sentence stays as it was.

Sentence Appeal Example Case:In DPP v Tarrant [2021] VSCA 150, the prosecution appealed the lenity of a sentence for a serious violent offence. The appeal court upheld the increased sentence, holding that the initial penalty did not do justice to the seriousness of the offence.

Differences Between a Conviction Appeal and a Sentence Appeal

AspectConviction AppealSentence Appeal
PurposeTo challenge the guilty verdictTo challenge the leniency or severity of the sentence
Legal GroundsLegal error, factual error, new evidence, unfair trialExcessive or insufficient sentencing, judicial mistakes
Outcome PossibilitiesAcquittal, retrial, or dismissal of appealSentence reduction, increase, or dismissal
Effect on the DefendantMay lead to a full acquittalDoes not impact the conviction, but the penalty
Chances of SuccessHigher standard due to burden of proofMore subjective, but likely if sentence is disproportionate

The Appeal Process in Australia

Step 1: Filing a Notice of AppealThe appellant has to submit a Notice of Appeal within a strict time limit (generally 28 days from the date of verdict or sentencing). The notice should state the reasons for appeal and evidence in support.

Step 2: Preparing the Appeal RecordThe trial transcripts, evidence, and supporting legal arguments are prepared by the legal team for the appeal.

Step 3: Hearing Before the Court of AppealThe appeal is heard by a panel of three judges sitting in the Court of Appeal. The judges hear the case again but do not re-question witnesses or re-test evidence.

Step 4: Decision of the CourtThe appellate court can:
  • Allow the appeal and reverse the conviction/sentence.
  • Dismiss the appeal and affirm the initial decision.
  • Order a retrial.

Key Issues Before Filing an Appeal

  • Time Limits: Appeals have to be made within strict time limits.
  • Legal Costs: Appeals are costly; consider Legal Aid.
  • Chances of Success: Not all appeals succeed; legal advice is essential.
  • Possible Risks: A prosecution appeal may result in a more severe penalty.

External Resources for More Information

Appeals: Seeking Legal Help

Appealing a sentence or conviction is a sophisticated procedure that demands the services of professional legal practitioners. New South Lawyers can assist you in appealing against a sentence or conviction, with your rights secured and your best chance of a successful outcome.

It is important to understand the distinction between a conviction appeal and a sentence appeal when contemplating legal action in Australian litigation. Whereas a conviction appeal aims to have a guilty finding overturned, a sentence appeal argues against the harshness of the penalty.

If you or a family member requires legal help with an appeal,

Contact New South Lawyers today. Our skilled litigation team is available to offer professional legal advice and representation.

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