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Appeals

Criminal matters may be heard in the Magistrates, District or Supreme Courts.

It is possible for a matter heard in the Magistrates Court to be decided without the defendant being present. Where someone is convicted in these circumstances, it is called an 'ex parte conviction'. An application can be made to set aside an ex parte conviction. The application is heard in the Magistrates Court. For more information, see Application to set aside an ex parte conviction.

Appeals in criminal matters can be against a conviction itself and/or about the severity of the sentence (penalty).

An appeal is not a re-hearing to see if someone else will come to a different decision. It is not usually possible to re-argue questions of fact on appeal (unless special permission is granted). In most cases, the appeal must be based on some question of law. As an appeal therefore often means the arguing of legal principles, it is difficult for appellants who do not have some legal training to conduct their own appeals. A person who wants to appeal against a magistrate's decision should seek legal advice as quickly as possible.

Where a defendant attends a Magistrates Court hearing and:

  • is found guilty and sentenced of and for a summary or minor indictable offence, an appeal against conviction or sentence can be made to a single judge of the Supreme Court [see Magistrates Court Act 1991 (SA) s 42(2)(b)];
  • pleads guilty to a major indictable offence (or a group of offences including a makor indictable offence) and is sentenced, an appeal against that sentence can be made to Full Court of the Supreme Court, with the permission of the Full Court [see s 42(2)(ab)].

Note that appeals relating to offences that are categorised as industrial offences must be made to the Industrial Court [see s 42(2)(a)].

Appeals against a conviction or sentence handed down by the District or Supreme Court (these are called 'Superior Courts') are heard by the Court of Criminal Appeal, that is, the Full Court of the Supreme Court (being three judges sitting together, or if three judges are not available (or where the Chief Justice directs), two judges) [see Criminal Procedure Act 1921 (SA) ss 157 and 165].

Magistrates Court Appeals

Application to set aside an ex parte conviction

In the Magistrates Court, a person can be found guilty of, and convicted of, a summary offence in her or his absence [see Criminal Procedure Act 1921 (SA) ss 62A, 62BA, 62C]. This can occur when a summons is served but the defendant fails to attend on the date specified on the summons, or where the person is bailed to attend the hearing but fails to attend. The prosecution obtains the court's permission to proceed ex parte (without the person being present). The court will then hear only the prosecution version and if the Magistrate considers the charge is made out, the court can make a finding of guilty and convict the defendant, and in some cases, impose a penalty.

However, a person convicted may apply to the Magistrates Court to set aside that conviction and if the application is granted the case is reconsidered as though the conviction and penalty were never imposed.

A form (available from the Magistrates Court Registry) must be completed and filed at the Court within fourteen days of receiving notice of the conviction [see Criminal Procedure Act 1921 (SA) s 76A(1(b)].

The Court can also set aside the conviction on it's own initiative [s 76A(1)(a)].

The case will then be listed before a magistrate who will decide whether it is appropriate in all the circumstances to set aside the conviction and have the matter re-heard. Applications made out of time may still be considered by the court in special circumstances.

A court will set aside a conviction or order if it is satisfied that:

  • the prosecution agrees; or
  • if the conviction or order was made in error;
  • or if it is in the interests of justice.

    [Criminal Procedure Act 1921 (SA) s 76A(3)].

Where a conviction or order is set aside the Court can either re-hear the matter immediately or adjourn the proceedings for to a hearing at another time [s 76A(4)].

Appeals against conviction or sentence

Appeals from the Magistrates Court to the Supreme Court are governed by s 42 of the Magistrates Court Act 1991 (SA) and the the Supreme Court Criminal Rules 2014 (SA), Chapter 13.

Those appeals that are against convicton or sentence for summary or minor indictable offences go to a single judge of the Supreme Court [see s 42(2)(b)].

A second or subsequent appeal may be made against conviction with the permission of the Supreme Court. To obtain permission, the person must satisfy the Court that there is fresh and compelling evidence that, in the interests of justice, should be considered on an appeal. The Court may allow a second or subsequent appeal if it thinks that there was a substantial miscarriage of justice, quash the conviction and either substitute a verdict of acquittal or order a re-trial.

See Magistrates Court Act 1991 (SA) s 43A.

Appeals against sentence for major indictable offence

Those appeals that are against sentence for a major indictable offence go, with the permission of the Full Court, to the Full Court of the Supreme Court [see s 42(2)(ab)].

Procedure

The completed Notice of Appeal must be filed within 21 days of the date of the judgment, sentence or sentencing decision being appealed together with the prescribed fee [see r 107-108 Supreme Court Criminal Rules 2014 (SA)].

Within five days of filing the Notice of Appeal in the Supreme Court, one copy of the Notice must be served on the respondent and another copy must be served on the Registrar of the trial Court where the decision being appealed was made [see r 110].

A person who is in custody may apply to the court that sentenced them for bail while awaiting the outcome of her or his appeal.

In driving cases where the court has disqualified a person from driving (cancelled or suspended the licence), if the defendant appeals she or he can return to the court which imposed the disqualification and ask for the order of disqualification to be suspended until the appeal is heard. Before the application to suspend disqualification can be heard, the Notice of Appeal must first be filed in the Supreme Court and a copy of the notice must be served on the Magistrates Court which sentenced them. If the suspension of disqualification is granted by the Magistrates Court, then the defendant must show the Registrar of Motor Vehicles that such an order was made and that the appeal has been instituted and she or he will be able to continue driving until the appeal is heard and decided [Motor Vehicles Act 1959 (SA) s 139A].

The appeal hearing

A person who is represented at a hearing by a lawyer need not attend.

The matter is argued first by the lawyer of the person who is appealing, who puts to the judge legal propositions and previous cases (precedents) supporting the appellant's case. The respondent's case is then argued, usually by the Crown Solicitor, who takes cases over from the police (and other Government departments and statutory authorities) when they move to the Supreme Court. Again legal propositions and precedents are put to the judge, this time in support of the opposing view of the case.

It is up to the judge to decide which argument is correct. The appeal might be allowed or dismissed, with or without costs being awarded against the appellant.

If the appeal is allowed, the judge may:

  • send the case back to the Magistrates Court for re-hearing, normally before a different magistrate
  • in an appeal against conviction, quash the conviction (as if it had never happened)
  • in an appeal against sentence, fix whatever new penalty the Judge considers appropriate.[see Magistrates Court Act 1991 (SA) s 42(5)].

Superior Court Appeals

Appeals from a superior Court (District Court or Supreme Court).

Right of appeal

A person who has been convicted by a jury or has pleaded guilty and been sentenced by a District or Supreme Court judge has a right of appeal to the Full Court of the Supreme Court - in this case called the Court of Criminal Appeal [see Criminal Procedure Act 1921 (SA) s 157]. These appeals are governed by the Supreme Court Criminal Rules 2014 (SA) and the Supreme Court Criminal Supplementary Rules 2014 (SA).

The appeal must be made on one of the following grounds:

  • against conviction, on any ground that only involves a question of law
  • with the permission of the Court, against conviction on any other ground
  • with the permission of the Court, against the sentence passed.

The appellant is entitled to be present at the appeal by audio-visual link unless the appeal is based on a question of law only, in which case the permission of the Court must be obtained for an appellant who is in custody to be present [see s 167 of the Criminal Procedure Act 1921 (SA)].

The Notice of Appeal outlining the grounds of appeal to be relied on, must be filed with the Court of Criminal Appeal within 21 days of the date of the conviction or sentence [see r 107(1) Supreme Court Criminal Rules 2014 (SA)].

Appeals against conviction

A person found guilty by a jury may appeal against that conviction. An appeal is not a re-hearing of the case. The appeal is decided on issues arising from the transcript of the evidence at the trial. In exceptional circumstances the appellant may be allowed to present fresh evidence to the Court. This should be placed before the Court in the form of affidavits from witnesses saying what they would say if called in a new trial.

The appellant must convince the Court of one of the following:

  • that the jury's verdict should be set aside as unreasonable or unable to be supported by the evidence
  • that there was a wrong decision on a question of law by the judge
  • that there was a miscarriage of justice on any ground.

    [See Criminal Procedure Act 1921 (SA) s 158].

The Court has wide powers to deal with an appeal. It may allow the appeal against conviction, quash the conviction and either substitute a verdict of acquittal or order a re-trial [see s 158].

However, even if the Court finds in favour of the appellant on some point of law, it may still dismiss the appeal if it finds that no substantial miscarriage of justice has occurred [see 158(2)].

The Court may also allow an appeal by the Director of Public Prosecutions against acquittal, quash the acquittal and order a re-trial [see s 158(4)].

Second or subsequent appeals

A person found guilty by a jury may file a second or subsequent appeal against conviction with the permission of the Full Court. To obtain permission, the person must satisfy the Court that there is fresh and compelling evidence that, in the interests of justice, should be considered on an appeal. The Court may allow a second or subsequent appeal if it thinks that there was a substantial miscarriage of justice, quash the conviction and either substitute a verdict of acquittal or order a re-trial [see Criminal Procedure Act 1921 (SA) s 159].

Appeals against sentence

A person found guilty by a jury can also appeal against the sentence imposed by the Judge in that case.

The appellant must convince the Court that the Judge made a mistake in law when imposing sentence (for example, ignored a factor which would point to a lesser sentence) or that the sentence imposed was so obviously outside the usual range of penalties imposed for the type of offence as to be manifestly inadequate or manifestly excessive.

The Court may allow an appeal, quash the sentence passed, and subsitute what sentence it thinks ought to have been passed or order re-sentencing. However, on an appeal against sentence by the convicted person, the Court must not increase the severity of the sentence, except to extend the non-parole period where the Court otherwise decreases the sentence [see Criminal Procedure Act 1921 (SA) s 158(8)].

When a convicted person obtains permission to appeal against sentence, the Director of Public Prosecutions may then also appeal against the sentence, without the need to obtain the permission [see s 157(2)].

    Appeals  :  Last Revised: Fri Mar 2nd 2018
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