Do you seek to appeal against a conviction or sentence?

Get a lawyer who has proven success in complex and difficult appeals in the Queensland Court of Appeal and High Court.

Do you seek to appeal against a conviction or sentence?

Get a lawyer who has proven success in complex and difficult appeals in the Queensland Court of Appeal and High Court.

How this firm can help you achieve justice

How this firm can help you achieve justice

Andrew Anderson, Legal Director, is an award-winning lawyer who is independently recommended as being among the leading criminal defence lawyers in Queensland (Doyles Guide, 2021).
Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions and multiple other courts dealing with trials and other hearings, Andrew Anderson understands how to succeed in complex and difficult cases.
Andrew Anderson has worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from simple cases right through to complex homicide trials and appeals.
Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and fighting for justice is an everyday pursuit.

Learn more about criminal appeals

1. What many appellants don’t know, but should

Unlike when a person faces trial or even sentencing and the prosecution bears the onus of proving its case, on appeal, it is the appellant who must demonstrate the error. Given that so much depends on the appellant’s arguments in an appeal, anybody seeking to appeal against a conviction or against the severity of a sentence should know certain information before litigating their appeal.

The operation of ‘the proviso’ in criminal appeals

In Queensland, the Queensland Court of Appeal may dismiss an appeal under section 668E(1A) of the Criminal Code “if it considers that no substantial miscarriage of justice has actually occurred”. This is commonly referred to by lawyers as ‘the proviso’.

In a decision from the High Court of Australia in 2020 (GBF v The Queen [2020] HCA 40), it was confirmed that proof that a miscarriage of justice occurred lies upon the appellant, and the dismissal of the appeal under the proviso, the proof lies on the respondent. For this reason, it is important for all appellant’s (and their legal representatives) to have a clear understanding as to why a miscarriage of justice occurred in the court below and why it matters.

Representation may make a difference

In the latest annual report of the Supreme Court of Queensland (2019-2020), it is reported at page 19 that only 12.1% of self-represented litigants were successful in their appeals. This is compared to a reported success rate of 58% over the same period for all criminal appeals. Andrew Anderson has been involved in numerous appeals in the High Court of Australia, Queensland Court of Appeal and other appellate reviews.

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Different types of appeal hearings

An appeal hearing will be influenced by the rules governing the appeal. The three general categories of appeals from a trial court are appeals in the strict sense, appeals by way of rehearing and appeals ‘de novo’ (from the beginning).

For criminal appeals, some appeals require permission from the appellate court before any appeal may be heard, such as occurs with special leave applications in the High Court of Australia. In other instances, a person may have a right to appeal. For anybody seeking to appeal against a conviction or sentence, it is important to understand there are different types of appeals, which have a significant impact on the way an appeal hearing may be conducted.

Appeals in the strict sense

An appeal in the strict sense is the most restrictive form of appeal, as the litigants must argue the appeal grounds by reference to the evidence that was before the lower court applying the law at the time the issue was litigated. As a result, fresh evidence and subsequent amendments to the law are not considered by the appellate court. The High Court of Australia generally conducts appeals in the strict sense for criminal appeals.

Appeals by way of rehearing

Appeals by way of rehearing may allow the appellate court to consider the law as it stands at the time of the appeal, as well as receive fresh or new evidence. While the appellant court may give due weight to findings made by the trial court, it may reach different decisions on the same evidence during the rehearing. Appeals to the District Court of Queensland from decisions of the Magistrates Court provide an example of an appeal by way of rehearing.

Appeals ‘de novo’ (from the beginning)

The Latin term ‘de novo’ means to start at the beginning or anew, so an appeal de novo refers to an appal where the appellate court retries all of the issues afresh without being bound or limited to evidence that formed the basis of the original trial. The nature of an appeal de novo allows the appellate court to go beyond merely conducting a review of the original decision.

Important time limits apply to appeals

In Australia, appellate courts have time limits for filing an appeal. While it is possible for appellate courts to grant an extension of time in which to appeal, extensions are often refused if the explanation for the delay is inadequate or the prospects of success on appeal are low.

Strict time limits apply to appeals against conviction and sentence. While it is, in some cases, possible to seek an extension of time in which to appeal, extensions may not be granted and the rights a person otherwise may have to successfully appeal are lost. For that reason, anybody contemplating an appeal a conviction or appeal a sentence should contact an experienced criminal defence lawyer as a priority.

High Court of Australia – Time Limits

The High Court Rules specify that an application for special leave to appeal to the High Court of Australia shall be filed within 28 days after the judgment from the lower court (such as the Queensland Court of Appeal) was pronounced. If a special leave application is not filed within time,  it is necessary to seek an order that compliance with the time limit is dispensed with and provide an affidavit explaining the reasons for the failure to comply with the time limit.

Queensland Court of Appeal – Time Limits

For a person convicted or sentenced in the Supreme Court of Queensland or the District Court of Queensland, generally, any appeal is then heard by the Queensland Court of Appeal. The time limit for appealing to the Queensland Court of Appeal is one month from the date of conviction or sentence. In some cases, conviction and sentence dates may be different and so the time limitation dates will also differ depending on the nature of the appeal being pursued.

As with the High Court of Australia, it is possible to seek an extension of time in which to appeal, however, such applications may be dismissed if there is no satisfactory explanation for the delay or there are limited prospects of a successful appeal.

District Court of Queensland – Time Limits

For a person convicted or sentenced in the Magistrates Court, a time limit of one month exists for an appeal against conviction or an appeal against sentence to be filed in the District Court of Queensland. The Justices Act 1886 (Qld), which is the law that sets out the power to appeal a decision of a Magistrate, provides some scope for an extension of time in limited circumstances.

2. Appealing criminal convictions in Queensland

Appeals and reviews are proceedings that can be complex and technical in nature, often requiring a specialist focus on appellate practice. Unlike the starting point for a criminal proceeding when a person accused of an offence is presumed innocent, criminal appeals require the appellant to prove their case. Having the right legal team to provide advice and representation for an appeal can be all the difference between a miscarriage of justice overturned or not.

Unreasonable Verdicts

In Queensland, a common ground of appeal in appeals against conviction relates to a verdict being unreasonable, or that it cannot be supported having regard to the evidence. If an appellant succeeds on a ground of this type, they are generally acquitted of the charge and do not face a re-trial.

A ground of appeal that a guilty verdict is unreasonable or not supported by the evidence requires an appellate court to be satisfied that, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant is guilty. It requires the appellate court to make its own independent assessment of the evidence, both as to its sufficiency and its quality. However, one challenge for this kind is “[t]he starting point … is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses.”SKA v The Queen [2011] HCA 13 at paragraph [13].

Inconsistent Verdicts

A defendant may face multiple charges in a single trial. Although juries are asked to consider each charge separately in arriving at their verdicts, there are occasions when verdicts are legally or factually inconsistent or point to a compromise being reached between jurors. That is, the verdicts cannot, as a matter of law or logic, be reconciled with one another. In such cases, a ground of appeal may be raised that the verdicts are inconsistent and a miscarriage of justice has occurred.

Section 620 of the Criminal Code 1899 (Qld) states:

After the evidence is concluded and the counsel or the accused person or persons, as the case may be, have addressed the jury, it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make.

In cases where the jury is misdirected by a judge on a point of law, a conviction may be overturned and a re-trial ordered unless the appellate court is satisfied that “no substantial miscarriage of justice has actually occurred”. As such, not all incorrect legal directions given to a jury will result in a re-trial. It is a common complaint on appeal that a judge failed to properly direct the jury on a particular issue, or that the law was wrongly explained to the jury.

Wrongly Admitted Evidence

A defendant facing trial may object to evidence on a number of bases. If evidence is wrongly admitted to the detriment of a defendant, then the resulting convictions may be quashed as the evidence may have affected the verdict of the jury.

In Queensland, a defendant may object to prosecution evidence being admitted as part of the trial. Such objections may take place before or during the trial. Even if no objection is made at trial, it is sometimes possible for a complaint to be made about the admission of evidence on appeal. Examples of evidence of this kind are tainted or flawed identifications, police interviews that were involuntary or unfair, or other evidence that is so prejudicial that an unfair trial would result.

Fresh or New Evidence

An appellant may wish to adduce further evidence on appeal to show they have suffered a miscarriage of justice. For evidence not given at a trial but sought to be raised on appeal, it can matter whether it is characterised as ‘fresh’ or ‘new’ evidence.

It is called ‘new evidence’ if the evidence was available or could with reasonable diligence have become available at the trial. Fresh evidence is evidence that was unavailable or could not reasonably be discovered at the trial. Whatever type of further evidence it is, if it shows the appellant to be innocent or when it raises a reasonable doubt as to his or her guilt, the conviction must be set aside. If fresh evidence is likely to have changed the verdict, again the conviction will not stand. However, showing that new evidence was likely to have made a difference to a verdict will be insufficient to overturn the conviction.

3. Appealing excessive penalties and sentences

There are a number of ways a sentencing error may be shown, such as by showing that the sentencing judge applied a wrong principle of law, omitted to take into account a relevant issue or took into account an irrelevant issue, or simply mistook some facts. In cases where no identifable error can be alleged, it is possible to appeal the sentence on the basis it is ‘manifestly excessive’.

Manifestly Excessive Sentences

The law regards sentencing as a discretionary exercise and that reasonable minds may differ as to the precise penalty or sentence that should be imposed. For that reason, to succeed on a ground of this kind, it is necessary to show the sentence was outside of the range of appropriate penalties.

A common appeal ground in Queensland is that the sentence or sentences imposed is manifestly excessive in all the circumstances. For a ground of this kind, an appellant needs to show the sentence imposed is unreasonable or plainly unjust. Sentencing judges in Queensland have a broad discretion in relation to the appropriate penalty, so the appellate court needs to find that the sentence imposed was outside of the permissible range of sentences that could be imposed before it will intervene to alter the penalty.

In some cases, a sentencing judge applies the law incorrectly. An example of a legal error may be seen in R v Houkamau [2016] QCA 328, which involved Andrew Anderson successfully showing the Queensland Court of Appeal that the sentencing judge had misapplied principles relating to time in prison served by the appellant. Upon the error being established, a lesser sentence was substituted. It is important to recognise that even if a specific legal error is demonstrated, it does not always lead an appellate court to impose a different sentence.

Factual Errors in Sentencing

If a person is sentenced on an incorrect factual basis, it can lead to an unjust penalty. Factual errors in sentencing often occur when a judge infers or draws conclusions from other evidence, which are unreasonable or not supported by the evidence.

In Queensland, sentencing judges generally summarise the key facts to explain why they have concluded a particular penalty is warranted. However, in doing so, it sometimes is clear that the judge has mistaken something. In some circumstances, a ‘clear factual error’ is immediately obvious and it is possible to correct the issue straight away, before the same judge. However, in other instances, mistakes are only realised later at which time there may be other factors that make an appeal a preferred option to resolve the issue.

Do you need personalised legal advice or representation regarding an appeal?

If you are considering an appeal against conviction or appeal against the severity of a sentence, Anderson Legal ought to be your preferred choice for advice and representation. As a leading criminal lawyer in Queensland, Andrew Anderson has a demonstrated history of successfully litigating appeals before the High Court of Australia and Queensland Court of Appeal.

If you need to contact Anderson Legal, you can call the firm on (07) 3505 7070. Alternatively, you can complete our form and we will try to contact you.

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