Filing an appeal against a conviction or sentence is quite different from defending a client against criminal charges. At appeal, a Criminal Defence Lawyer does not defend the charges brought against a defendant by the Queensland Police Service, State and/or Federal prosecutors.
To the contrary, it is the lawyer’s job to address the Appeal Court on any errors that the previous presiding judge/magistrate may have made, address the Court on whether the conviction should be set aside/quashed or a re-trial of the matter, and/or to address the court as to whether the sentence imposed is manifestly excessive in all circumstances.
In effect, by filing a Notice of Appeal, a Criminal Lawyer indicates to the court that they may have made an error in their original judgement or sentence which has led the presiding judge/magistrate into error in delivering judgement, misdirecting a jury or passing sentence.
The legislation provides that should an appeal against sentence be allowed in an appellate court then that court can essentially re-sentence the defendant accordingly to the evidence and submissions made at first instance.
As you can see, the process of appealing a decision of a court can be tricky and complex. During an appeal, the Criminal Defence Lawyers will focus heavily on the transcripts of the proceedings/sentence and documents/exhibits and submissions made by prosecution and defence from the initial hearing of the matter, whether it be a summary trial, jury trial or plea of guilty/sentence, rather than the guilt or innocence of their client.
Your Original Plea Defines What You Can and Cannot Appeal
If you feel that you have been wrongly convicted or your sentence is manifestly excessive, the only remedy for this is to lodge a Notice of Appeal. If you entered a plea of guilty in the initial instance and the matter proceeded on this basis, you can only appeal against the sentence that has been imposes, namely that the sentence has to be manifestly excessive taking into account the circumstances of the offending and any mitigation submitted on your behalf.
However, if your matter proceeded by way of a summary hearing or trial and you were found guilty, then you may be able to appeal both the conviction and the sentence imposed upon you.
Grounds for an Appeal
The first thing a Defence Lawyer has to establish is whether or not an error was made at first instance. If your Lawyer finds an error that they feel warrants an appeal on your behalf, they may suggest commencing the appeal process.
Your Criminal Lawyer will have to try and prove that there has been an error at law or that rules of procedural law have been violated during the course of the trial/sentence.
Filing an Appeal
Any appeal in a Queensland court must be filed within 1 month after the date of the original order. For appeals from the Magistrates Court, you will be required to file a Form 27 – Notice of appeal to a District Court Judge (s.222).
If you are unable to meet the deadline, you can file for an application seeking an extension of time by way of a Form 27b – Notice of application of extension of time for filing notice of appeal to a District Court Judge.
The Procedural Rules for an Appeal
As the Criminal Lawyer must establish that the presiding judge/magistrate has made an error at law which has led to a conviction, or that a sentence that is manifestly excessive has been imposed. It is essential for the lawyer to use only the original court transcripts and documents/exhibits and all submissions to prove the alleged errors.
Absolutely no exculpatory or new evidence or documents/exhibits discovered after the trial are allowed to be admitted to the court to be relied upon at appeal.
As unfair as this may sound, the person convicted must continue to bear in mind that an appeal is not a retrial. It’s an appeal against the original order because of one or more errors by the court.
This is why a Criminal Defence Lawyer is required to have detailed knowledge of procedural law as well as other factors regarding criminal law to best advise you if you feel that an incorrect conviction or sentence has be imposed against you.