On this page:
You must complete all pages of the 'Notice of appeal'. Handwriting is acceptable.
You must fill in all the required details on each page. If you are not appealing both sentence and conviction, you must delete which ever type of appeal is not applicable.
Then you should briefly outline your grounds of appeal in the 'Notice'. Grounds are the reasons why your conviction and/or sentence is wrong, and should be 'quashed' (see 'Terms you should know') or set aside.
You can decide to appeal on the basis of one ground of appeal, or several.
What is an application for leave to appeal against sentence?
Unless the sentence is fixed by law (ie a mandatory sentence), a person convicted by the supreme court or district court can appeal, by leave of the court, against their sentence. (See Criminal Code (Qld) s.668D (1) (c)).
An 'Application for leave to appeal against sentence' is generally made when the person sentenced has good grounds for thinking that their sentence is too severe or wrong in law, and wants it reduced or replaced with a different sentence altogether (eg a community service order instead of imprisonment). The most common ground is that the sentence is manifestly excessive (ie the sentence is so far outside the range of appropriate sentences, it can be said the judge made a mistake in sentencing.)
The court will consider the grounds of appeal and may compare the sentence with other sentences imposed in similar cases. If the court is of the opinion that some other sentence, whether more or less severe, is warranted in law, it will allow the appeal. If the court allows the appeal it must vary or set aside the original sentence and pass another sentence as appropriate. (See Criminal Code (Qld) s668E(3)).
Grounds for sentence appeals
When appealing against sentence, many applicants use the ground 'the sentence was manifestly excessive in the circumstances'. You can use this ground in your appeal against sentence if you think your sentence was too harsh.
A sentence may be considered manifestly excessive when:
- the head sentence should be reduced;
- a parole recommendation should be made or reduced;
- you think the judge miscalculated, for example, did not calculate your days in custody properly;
- there is an error in law, for example, the judge thought the maximum sentence was higher than it actually was;
- you were convicted of a serious violent offence;
- the judge should not have recorded a conviction as part of your sentence; or
- the judge should not have attached a certain condition to your sentence.
What is an appeal against conviction?
An appeal against conviction is available in cases where an accused person has pleaded not guilty, has had a trial and has been found guilty by a jury.Only in rare circumstances can an accused person appeal against conviction after having pleaded guilty. An accused person ordinarily has only one right of appeal against conviction.
An appeal against conviction may involve a complaint regarding the way in which a trial was conducted; for example, the failure of the trial judge to give an appropriate warning or direction to the jury, or if a judge allows inadmissible material into evidence. The most common grounds of appeal against conviction from the district or supreme Courts to the Court of Appeal are:
- the verdict is unreasonable or cannot be supported, having regard to all of the evidence;
- there is an error of law or mixed law and fact, specifying the grounds relied upon; and
- that there has been a miscarriage of justice, specifying the grounds relied upon.
The Court of Appeal looks at the grounds of appeal and has the power to make numerous orders and directions, the most common being:
- dismissing the appeal against conviction if the court considers that no substantial miscarriage of justice has actually occurred ;
- sending the matter back to the originating court for retrial;
- quashing the conviction and directing a verdict of acquittal;
- directing that there be no retrial without directing a verdict of acquittal (rare);
- substituting a verdict of guilty of a different offence where the jury must have found an accused guilty of that other offence; or
- in exceptional circumstances, setting aside the conviction and entering a verdict of not guilty by reason of unsoundness of mind.
Grounds for conviction appeals
With respect to appeals against conviction, you can consider using some or all of the following grounds. These grounds are a general example only and do not cover all possible issues, facts or matters that could be raised for a conviction appeal:
- error of law;
- error in ruling during trial;
- error in judge's summing up to jury;
- fresh evidence;
- unreasonable verdict;
- any reason why you think you did not receive a fair trial; and
- an irregularity in the conduct of the trial.
If you include grounds of appeal against conviction in general terms, you will need to be specific in your grounds as to what the error or complaint is. You will then need to elaborate in your Submission of Argument.