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This publication is intended to help you:
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This guide can help you if you have been sentenced and/or convicted in the District or Supreme Court in Queensland and want to appeal your sentence and/or conviction.
This guide explains the process to appeal against your sentence or conviction and will help you prepare for your appeal, including showing you how to fill out the necessary forms.
Do not use this guide if:
You should get legal advice if you:
Appeals against convictions and sentences are complicated, and there may be risks in appealing a decision from the District or Supreme Court—get legal advice before starting an appeal.
There are also strict time limits for appealing court decisions. Your lawyer can explain how these time frames apply to your case when you get legal advice.
You can get legal advice from:
While you may want to represent yourself, you should find out if you can get legal aid for a lawyer to represent you for your appeal. If you have not already applied for legal aid for your appeal, you should apply as soon as possible. Even if you received legal aid for your sentence or trial, you must apply for legal aid again for your appeal.
Demand for our services is high, so we use strict criteria when granting aid for legal representation. This way we can make sure we are using our funding to help those who are least able to afford a lawyer.
We use three sets of criteria to determine if legal aid will be granted. These are the Legal Aid Queensland means test, funding guidelines and in most cases,
a legal merits test.
The means test looks at your income (what you earn) and assets (what you own) to see if you are financially eligible for legal aid.
If you support or provide financial help to other people (like a partner or child/ren), the means test will take this into account. If another person supports you, provides financial help to you or can be reasonably expected to provide you with financial help (like a partner), then the means test will take this person's income and assets into account. Please ensure you include their income and asset details in your legal aid application.
The funding guidelines tell us the types of cases we can fund, based on the priorities set for us by the state and federal governments. You can get a complete list of the priorities on our website www.legalaid.qld.gov.au
When you are applying for legal aid for an appeal you must also meet our merits test before aid can be granted.
We assess the merit of each person's case by looking at:
A senior appeals barrister will decide if your case is more likely to succeed or fail on appeal. Legal Aid Queensland will refuse your application for aid if your appeal is more likely to fail then succeed.
We will send a letter to let you know your application's result.
If you are refused a grant of legal aid for your appeal, you can appeal this decision. You must write to the external review officer within 28 days of the refusal. Write to:
The external review officer
Legal Aid Queensland
GPO Box 2449
Brisbane Qld 4001
If you are refused legal aid for your appeal, or you do not want to be represented by Legal Aid Queensland, you can pay a private lawyer and barrister to represent you.
If you decide to pay a private lawyer and a barrister, you can call the Queensland Law Society to find a lawyer who specialises in appeals. Sometimes the Bar Association of Queensland can help you find a pro bono (no charge) barrister for appeals.
Queensland Law Society - 1300 367 757
The Bar Association of Queensland - 07 3238 5100
Community legal centres can also help you to find private legal services in your area. Call Legal Aid Queensland on 1300 65 11 88 or visit www.legalaid.qld.gov.au to find out where your closest community legal centre is.
This flow chart shows how the appeals process works when you are representing yourself:
Download as a PDF(PDF, 89KB)
If you want to appeal against your conviction and/or the sentence imposed in the District or Supreme Court, you must complete a Form 26 — Notice of Appeal and file it in the Court of Appeal registry within the appeal time limit. On this form you will need to briefly outline your grounds of appeal.
The grounds for an appeal are the reasons why you think the judge or jury made the wrong decision, or the trial wasn’t conducted according to the law. Grounds are the reasons why your conviction should be ‘quashed’ (declared invalid) or why your sentence should be reduced.
You can decide to appeal on the basis of one or several grounds of appeal. You must keep your grounds of appeal brief and to the point in the Form 26 — Notice of Appeal. You will get the opportunity to outline your grounds in more detail further into the appeals process.
A conviction is the decision made by a judge or jury that a person is guilty of an offence.
If you plead guilty you can appeal against your conviction in some circumstances. You only have one chance at an appeal against conviction.
Consider using some or all of the following grounds when appealing against your conviction. These grounds are general examples only and do not cover all possible issues, facts or matters that could be raised for a conviction appeal. Get legal advice about your possible grounds for appeal. Some examples are:
The Court of Appeal looks at the grounds of appeal and has the power to make numerous orders and directions. The most common orders and directions are:
A sentence is the penalty a person receives for committing an offence (eg 12 years’ jail time).
Unless the sentence is fixed by law (a ‘mandatory sentence’), a person convicted in the Supreme or District Court can seek leave (ask the court for permission) to appeal against their sentence.
Generally, a person might appeal their sentence if they have good grounds for thinking their sentence is too severe or wrong in law, and want it reduced or replaced with a different sentence altogether.
This may mean asking the court for:
The most common ground of appeal is the sentence is ‘manifestly excessive’ (ie the penalty was too harsh and not appropriate for the crime).
A sentence may be considered manifestly excessive when:
The court will consider the grounds of appeal and may compare the sentence with other sentences imposed in similar cases. If the court believes the sentence is manifestly excessive, it will allow the appeal.
If the court allows the appeal, it may change the original sentence.
There is a strict time limit to file the Form 26 – Notice of Appeal. If you are appealing your sentence, you must file the form within one calendar month from the date of your sentence. If you are appealing against conviction, you must file the form one calendar month from your date of conviction. If you are in custody, the date you file the form with Sentence Management is taken to be the filing date in the Court of Appeal.
To work out your one calendar month time limit to appeal, add one calendar month plus one day onto your conviction/sentence date. For example, if you are appealing your sentence and were sentenced on 12 June 2018, you must file your Form 26 – Notice of Appeal on or before 12 July 2018.
It is important to remember the time frame for appealing against your conviction will start from the day you were actually convicted, not from the day you were sentenced. So if you were convicted on one day but sentenced on a later day, your one calendar month time frame for appealing your conviction will begin from the day you were convicted.
If you want to file the Form 26 – Notice of Appeal after the one calendar month appeal period has passed, you will also need to complete and file a Form 28 – Notice of application for extension of time within which to appeal at the same time (see Sample documents and forms). Blank forms are available from the Court of Appeal registry or on the Queensland Courts website (www.courts.qld.gov.au on the forms page under the ‘Criminal Practice Rules 1999’ heading).
You must write very good reasons in your Form 28 – Notice of application for extension of time within which to appeal to justify why the Court of Appeal should hear your appeal, such as why your appeal is likely to be successful. Even though you filed your Form 26 – Notice of Appeal outside the appeal period, the court will give you a hearing date to argue why your appeal should be heard. Legal aid is not usually granted for these hearings so you must be prepared to represent yourself at the hearing and to argue your actual appeal grounds at the time of the hearing.
The Court of Appeal will then decide whether you will be allowed to appeal, because your Form 26 – Notice of Appeal was not filed in time.
If the Court of Appeal grants you an extension, you may want to apply for legal aid for a lawyer to represent you for your appeal.
You can file your form in person at the Court of Appeal registry during the registry’s business hours (8.30am – 4.30pm, Monday to Friday):
Queen Elizabeth II Courts of Law Complex
Court of Appeal registry
Ground floor, 415 George Street
Brisbane Qld 4000
Phone: (07) 3247 4702
Or you can file your form by mail to:
Court of Appeal registry
PO Box 15167
City East Qld 4002
If you are in custody, you can file your form with Sentence Management at the correctional centre and they will arrange for it to be filed at the registry. Make sure Sentence Management has received your form within the appeal time limit.
If you are representing yourself at your appeal, the registry will send you a letter to say they have received your form.
If you decide to stop your appeal, you can abandon it by filing a Form 30 – Notice of abandonment of appeal or application (see Sample documents and forms). Blank forms are available from the Court of Appeal registry or on the Queensland Courts website (www.courts.qld.gov.au on the forms page under the ‘Criminal Practice Rules 1999’ heading).
You can formally abandon your appeal up to and including the date of the appeal, but you should abandon as soon as you decide to stop your appeal. File the Form 30 – Notice of abandonment in person at the Court of Appeal registry or file it by mail. If you are in prison, you can file it by giving the original to Sentence Management at your centre.
If you do not lodge this form, your appeal will still go ahead. If you are in prison, you will be brought before the Court of Appeal even though you do not want to go ahead with it.
The Court of Appeal registry contact details are:
Queen Elizabeth II Courts of Law
Ground floor, 415 George Street
Brisbane Qld 4000
Phone: (07) 3247 4702
When you file the Form 30 – Notice of abandonment at the Court of Appeal registry, your appeal process will end.
It can be very difficult to start your appeal again once you have abandoned it. Consider your decision carefully before abandoning your appeal.
Once you’ve filed your Form 26 – Notice of Appeal, it may take several months before you get a hearing date in the Court of Appeal. The Court of Appeal registry will need to get the transcript of your trial or sentence and all the exhibits, and there may be many other appeals waiting to be heard.
The registrar will write to tell you a date for the appeal hearing.
If you have been sentenced to a term of imprisonment, you will not automatically receive bail before your appeal hearing. Appeal bail is granted only in exceptional circumstances. For example, if you received a short term of imprisonment and all or most of it would be served before the appeal hearing, you might be granted bail.
If you don’t have bail, you can write to the Court of Appeal registrar to ask for an early hearing date.
If you want to apply for bail, see a prison duty lawyer, the Prisoners’ Legal Service or Sentence Management about bail. They may be able to give you Legal Aid Queensland’s Bail by mail guide.
The Appeal Record Book contains the full transcript of your previous hearing, the judge’s summing up and sentencing remarks, and copies of exhibits. The Appeal Record Book will be sent to you when it becomes available. If you are representing yourself, you do not have to pay for the Appeal Record Book.
The appeal will generally be argued on the basis of the evidence that was before the sentence or trial court. Remember, your appeal is not another opportunity for you to hold another trial or sentence hearing.
The Appeal Record Book may not contain all the items or documents that were tendered (given) to the sentencing judge. You can write to the Court of Appeal registry and ask them to include a copy in the Appeal Record Book of any items that were tendered to the sentencing judge on your behalf (eg references).
If you want to rely on an exhibit that can’t be included in the Appeal Record Book (eg some video footage), you may ask the registry to have it present in court on the day of the appeal.
You must submit a written statement to the Court of Appeal outlining the reasons why your appeal should be granted. This written statement is called an outline of argument and should include the arguments and issues you want the Court of Appeal to consider. The outline must not be more than 10 pages.
It is very important you put all your reasons in writing, as the Court of Appeal judges will read and consider your reasons before the day of appeal.
On the day of the appeal, the judges will probably not want you to re-argue what you have already put in writing. They will simply want to ask you questions to clear up any misunderstandings or discrepancies. This is why it is so important to argue fully in writing and lodge your arguments with the Court of Appeal registry before the day of the appeal hearing.
You may want to include case authorities (also known as precedents) in your outline of argument. Case authorities are published judgments in previously decided cases. You could use these to show how other people charged with the same offence received a different outcome from the court (eg a lesser sentence or no conviction recorded). Generally, the Court of Appeal will only consider its own or other Appeal Court decisions. Appeal case authorities may be found in university law libraries and the Supreme Court Library in Brisbane. You can also find case authorities on the Supreme Court Library website (www.sclqld.org.au/caselaw/QCA).
Your arguments will be different, depending on whether you are appealing your conviction or sentence. Some common reasons for appealing both are listed below.
If you are appealing your conviction How to start an appeal for examples of grounds and reasons for appealing against your conviction.
In your outline of argument, make sure you:
See page 10 for examples of grounds and reasons for appealing against your sentence.
Keep the following points in mind when writing your outline of argument:
The Court of Appeal will not reduce your sentence if it is simply harsh. It must be ‘manifestly excessive’ compared to similar cases for the court to reduce the sentence.
If you want to argue your sentence is manifestly excessive, you should include details of comparable cases in your outline of argument. The court will only consider comparable cases that have similar circumstances to your case.
You may be able to get details of comparable sentences from the Prisoners’ Legal Service.
Parity means where two or more people commit the same crime they should not receive very different sentences.
To have parity, your co-accused’s case must be similar to your own. For example, if your co-accused had less involvement in the offence than you or was a first offender or you have a longer criminal history, then the Court of Appeal will not usually consider your sentence should be the same as your co-accused.
You may be able to argue the judge made a mistake in sentencing you when they:
The totality principle is a legal principle that applies to people being sentenced for different crimes at different times. When a judge is sentencing a person in this situation, they need to ensure each sentence is appropriate for the crime and the total sentence is appropriate for all of the offences committed, and not excessive. You need to be prepared to argue why your total sentence was too high and what it should have been, given the total criminal offences involved.
The Court of Appeal will not usually look at evidence that was not a part of the trial or the sentence, unless there are special reasons. If you want to rely on this type of evidence in your appeal, you need to apply for the court to look at it.
The court will usually only look at new or fresh evidence where the evidence:
If you apply for new or fresh evidence to be allowed, you should address each of these three things. You will also need to file a written application for fresh evidence using Form 38 – Application for leave to adduce evidence. You can get a copy of the form from the Queensland Courts website (www.courts.qld.gov.au on the forms page). You will also need to file a supporting affidavit with the details of the fresh evidence.
You cannot use the following grounds to argue your appeal against sentence should be allowed:
You are not guilty
You were sentenced because you were found guilty or pleaded guilty. On a sentence appeal, whether you are guilty is not discussed.
You were not as involved in the crime as the prosecutor said
Unless your barrister challenged this at your sentence hearing, you cannot normally ask the Court of Appeal to consider facts that were not given to the judge at the time of your sentence.
Fourteen days before your hearing date, you should receive the prosecutor’s outline of argument stating their reasons why your conviction or sentence should not be changed. You should read the prosecutor’s outline of argument and try to think of reasons why the Court of Appeal should disagree with the prosecutor. You may have to give these further reasons to the court in person when you appear before them. You can prepare a written reply to the prosecutor’s reasons, but you don’t have to. On the day of your appeal hearing, you can tell the Court of Appeal anything you think of that was not in your written outline of argument.
Sometimes the Court of Appeal may sit in another court. You should check the law list at www.courts.qld.gov.au/daily-law-lists or in The Courier-Mail on the morning of your hearing.
The judges will ask you to explain why your appeal should be allowed. By the day of your appeal the judges will have read the Appeal Record Book and both your and the prosecutor’s outline of arguments.
The court will give you a limited opportunity to argue your case. They do not want to hear a lengthy repeat of arguments you have already put in your written outline. At the hearing you should tell the judges:
During the hearing the judges may ask you questions. If needed, point out to the judges any relevant part of the Appeal Record Book you think they should look at.
If you have nothing to add to the outline of argument you’ve already given the court, you can tell the judges you do not want to add to your written submissions with oral argument.
The result of the appeal is called the judgment. The Court of Appeal can give its judgment on the day of your appeal, or if the judges need more time to think about all the arguments, a judgment will be given on a later date. That is called a ‘reserved judgment’. Most decisions are reserved, so it is unlikely you will get a decision on the day you go to court. A judgment can be reserved for days, weeks, or even months.
If you are not in prison, you may attend court the day your reserved judgment is delivered. If you are in prison, you will not be brought to court to receive the judgment. You will be sent a copy of the court’s order.
You can find out what time the judgment will be delivered by checking the Daily Law List on the Queensland Courts website (www.courts.qld.gov.au/daily-law-lists) or in the The Courier-Mail on the day the judgment is being handed down (usually Tuesdays and Fridays). Judgments are usually published on the courts website on the same day they are handed down. You will be given a copy of the judgment.
If your conviction appeal is successful, you may be acquitted or you may need to have a retrial in the District or Supreme Court. If you are given a retrial by the court, you are not automatically released on bail, but can apply to the District or Supreme Court for bail. Get legal advice.
If you are successful in your sentence appeal, your sentence may be reduced.
If the court is thinking about increasing your sentence, they must let you know during the appeal hearing and give you an opportunity to abandon the appeal.
If you abandon the appeal, your sentence stays the same as it was before you appealed. See What if I want to abandon (stop) my appeal? for information on how to abandon your appeal.
Your sentence may be increased if the Attorney-General successfully appeals your sentence.
If you are in custody and have a fixed date for parole release or a partially suspended sentence, an appeal will not affect your release date.
If you have an eligibility date for parole, you cannot apply for parole until a decision has been made about your appeal.
If you are not sure whether your parole date is a release date or an eligibility date, ask Sentence Management at the prison.
If you lose your appeal to the Court of Appeal, you might be able to appeal to the High Court of Australia.
The High Court very rarely hears appeals against sentence.
If you want to apply for legal aid to consider if there is merit in a High Court appeal, get legal advice first. You will need to fill in a new Legal Aid Queensland application form.
Use this form when you want to appeal against your conviction and it has been less than one calendar month since your conviction.
Download Sample 1(PDF, 231KB)
Use this form when you want to appeal against your sentence and it has been less than one calendar month since your sentence.
Download Sample 2(PDF, 207KB)
Use this form when you want to appeal against your conviction and your sentence and it has been less than one calendar month since your conviction and sentence.
Download Sample 3(PDF, 240KB)
Use this form when you want to appeal against your conviction and/or your sentence and it has been more than one calendar month since your conviction or sentence. You will also need to complete a Form 26.
Download Sample 4(PDF, 215KB)
Use this form when you no longer want to appeal.
Download Sample 5(PDF, 102KB)
Use this sample when you are appealing against your conviction. Complete your outline of argument after you have lodged your appeal and have been sent the Appeal Record Book. Do this 28 days before your hearing date and send a copy to the Court of Appeal registry and the prosecutor.
Download Sample 6(PDF, 352KB)
Use this sample when you are appealing against your sentence. Complete your outline of argument after you have lodged your appeal and have been sent the Appeal Record Book. Do this 28 days before your hearing date and send a copy to the Court of Appeal registry and the prosecutor.
Download Sample 7(PDF, 158KB)
Abandonment — to give up or stop and appeal or application. You must file a Form 30 — Notice of abandonment of appeal or application.
Acquittal — a judgment that a person is not guilty of a criminal offence.
Appeal — a procedure where a court decision is reviewed by a higher court.
Appellant — the person who appeals a lower court’s decision to a higher court.
Comparable sentences — sentences given to others for the same or similar crime.
Conviction — a judgment or verdict that a person is guilty of an offence.
Court of Appeal — the court that hears appeals from the Supreme and District Courts, usually comprising of three Supreme Court judges.
Filing — the process where documents are accepted by a court. The court often stamps its seal on the filed document as evidence it was received.
Head sentence — the maximum sentence to be served, eg two years’ jail, suspended after nine months. In this example two years is the head sentence.
Judgment — the court’s decision about your matter.
Prosecutor — the person who brings a court action against another, usually only used for criminal proceedings.
Quash — to overturn or set aside, eg to quash a conviction.
Registry — the part of the court where all documents are filed.
Sentence — the penalty for committing an offence.
Last updated 13 July 2022