Criminal Defence and Appeal
A criminal matter rarely involves only a single stage.
From the police investigation, police interview and bail application through to the court hearing, sentencing and any subsequent appeal, each stage can have a significant bearing on the outcome of the matter.
For some clients, the legal issue arises at the outset of a matter — for example, being contacted by police, being charged or facing an imminent court appearance. For others, the issue arises after the court has already made a decision — for example, where they consider the outcome unreasonable, the sentence too severe, or that an error occurred during the hearing.
NS Legal can act for clients in defence and appeal matters at every stage of a criminal case, and provides legal advice tailored to the particular circumstances of each matter.
The Scope of Criminal Defence
Beyond advocacy in the courtroom, the more important role of a criminal lawyer is the work done before a matter goes to court — reviewing the police brief, analysing the evidence, examining the legal issues, assessing the risks in the matter, and developing a strategy suited to the circumstances. The focus differs from one matter to another. In some matters, the central question is whether the police evidence is sufficient to prove that the conduct occurred; in others, the greater concern is the sentencing outcome, or how best to present the client’s personal circumstances to the court.
Strategy on Whether to Plead Guilty
Once a criminal matter is before the court, a client usually faces an important decision early on: whether or not to plead guilty. Before that decision is made, it is generally necessary to review the police evidence, consider whether the prosecution can prove each element of the offence, and assess whether any legal defence is available. Where the prosecution evidence is insufficient, or where the client does not satisfy every element of the relevant offence, pleading guilty without proper consideration may lead to an unnecessary criminal record, fines, licence disqualification, visa consequences or other outcomes.
If a client enters a not guilty plea, the matter generally proceeds to a contested process, such as a hearing or trial. The lawyer will review the police brief, analyse weaknesses in the evidence, identify the facts in dispute and, where appropriate, cross-examine the prosecution witnesses. In some matters, the question in dispute is not “whether something happened”, but whether the prosecution can prove the relevant offence according to law, or whether the client has a lawful defence.
If a client enters a guilty plea, the focus of the matter usually shifts to securing the most favourable outcome possible. Pleading guilty does not mean simply accepting whatever penalty follows. Depending on the circumstances, the lawyer may still assist by negotiating with the prosecution to reduce or amend the charges, consolidate some charges, and prepare materials such as a letter of apology, character references, treatment or course records and medical reports, and by explaining the client’s personal circumstances and mitigating factors to the court at sentencing.
Unsure whether to plead guilty or defend the charge? Want to know first whether the prosecution evidence is strong enough?
When You May Need to Consider an Appeal
If you believe there is a problem with the original decision, you may be able to seek further review — for example, because you consider that:
- there is a problem with the conviction itself;
- the sentence is clearly too severe;
- the court applied the wrong legal principle;
- a procedural problem arose during the hearing;
- important evidence was not properly taken into account.
It is important to note that an appeal is not a fresh hearing of the entire matter. A court will not generally overturn the original decision simply because a person disagrees with the outcome. Whether an appeal can succeed depends on whether there is a legal ground that can properly be raised, and whether those issues are significant enough to affect the original decision.
Common Types of Criminal Appeal
Different matters may involve different types of appeal.
The most common are:
- a conviction appeal — challenging the finding of guilt itself;
- a severity appeal — challenging whether the penalty is too severe;
- an appeal against both the conviction and the sentence.
In NSW, the appeal pathway can differ depending on which court made the decision. For example, some Local Court matters can be appealed to the District Court, while certain criminal decisions made in the District Court or the Supreme Court may proceed to the Court of Criminal Appeal.
Why an Appeal Needs to Be Dealt With Promptly
Criminal appeals are generally subject to strict time limits.
After a decision is made, many clients prefer to wait and see how things unfold before deciding whether to act. However, as time passes, some appeal rights may be affected, and additional leave to appeal may then need to be sought as a procedural step.
How a Lawyer Can Help in Criminal Defence and Appeals
The issues in dispute differ in every criminal matter, and so does the way each matter is handled.
NS Legal can assist clients to:
- review the police evidence and court materials;
- analyse the facts and legal issues in the matter;
- develop a strategy for handling and defending the matter;
- appear on the client’s behalf in court proceedings;
- assess whether grounds of appeal exist;
- prepare the appeal documents and supporting materials;
- provide legal representation in the appeal proceedings;
- continue to provide legal assistance through the later stages of the matter.
In appeal matters, an important role of our NS Legal criminal law team is to assess whether there is a genuine basis for an appeal, and the outcomes that an appeal may lead to.
How NS Legal Can Help
Whether a matter is at the police investigation stage, before the court, or already at the point of judgment, NS Legal can provide legal assistance suited to its circumstances.
Drawing on the facts of the matter, the police brief, the court record and the client’s objectives, we help to assess where the matter stands, the potential risks and the available options, and we act in defence or appeal matters according to the circumstances.
Unsure of the next step in your criminal matter?
Frequently Asked Questions
After being found guilty, can I always appeal?
Not necessarily. Whether an appeal is available, and whether the grounds of appeal can be made out, depends on the nature of the matter, the level of court and the particular circumstances. Not every unsatisfactory outcome can be successfully appealed.
I pleaded guilty — can I still appeal?
In some circumstances, even after pleading guilty, it may still be possible to appeal against the sentence. Whether any scope for an appeal exists must be assessed on the facts of the particular matter.
Is an appeal just running the whole case again?
Usually not. An appeal court mainly reviews whether the original decision was affected by error, rather than simply re-hearing all of the facts. The scope of review also differs between the various types of appeal.
How long after the court’s decision do I have to decide whether to appeal?
Criminal appeals are generally subject to time limits, so it is not advisable to delay for long. The sooner you obtain legal advice, the better placed you are to assess the matter and prepare the relevant proceedings.
What if I’m not sure whether it’s worth appealing?
This is one of the most common questions clients ask. An appeal is not simply a procedural choice — it also involves the prospects of success, the time and cost involved, and the overall strategy for the matter. Obtaining legal advice to assess whether there are realistic, viable grounds of appeal is usually more important than rushing to lodge an appeal.
Need legal advice? Contact NS Legal
Whether your matter is at the police investigation stage, before the court, or already at judgment, we will assess your viable options for defence or appeal based on the facts of the matter.
