Criminal appeals in Queensland

Appeals from the Magistrates Court

Section 222 of the Justices Act 1886 (Qld) allows a person dissatisfied with an order made by a magistrate to appeal to a District Court judge. Key features:

• One calendar month from the day the order was made. An extension can be sought under section 224, but you must explain the delay and show the appeal has merit.
• The appeal is by way of rehearing on the record under section 223. The judge reads the transcript and exhibits rather than hearing the witnesses again. Fresh evidence requires leave and a good reason it was not called below.
• If you pleaded guilty, section 222(2)(c) restricts the appeal to the ground that the fine, penalty, forfeiture or punishment was excessive or inadequate, unless you first obtain leave to withdraw the plea.

A section 222 appeal is heard in a real hearing, usually within a few months, and the judge can confirm, set aside or vary the order or send it back to the magistrate.

Appeals to the Court of Appeal

For convictions and sentences from the District or Supreme Court, the route is the Court of Appeal.

1. Appeal against conviction, as of right on a question of law alone under section 668D of the Criminal Code, and with leave on a question of fact or mixed law and fact.
2. Application for leave to appeal against sentence, also under section 668D. Leave is required.

The notice must be filed within one month of the conviction or sentence. An extension of time can be granted under section 671, and the court will look at the length of the delay, the explanation, and whether the appeal has real prospects.

On a conviction appeal, the court asks whether the verdict is unreasonable or cannot be supported having regard to the evidence, whether there was a wrong decision on a question of law, or whether there was a miscarriage of justice. Even where an error is shown, the appeal can be dismissed under the proviso if no substantial miscarriage of justice actually occurred.

What actually succeeds

Appeal courts do not substitute their own view for the sentencing judge. A sentence appeal succeeds only if there was a specific error of principle, a material fact was misstated, an irrelevant factor was taken into account, or the sentence is manifestly excessive, meaning outside the range reasonably open.

Grounds that regularly succeed:

• A sentence outside the range established by comparable Queensland decisions.
• Failure to give a plea of guilty the discount required by section 13 of the Penalties and Sentences Act 1992 (Qld), or failure to state what the sentence would otherwise have been.
• Failure to declare pre sentence custody under section 159A.
• An error in the parole eligibility date, or a serious violent offence declaration that should not have been made.
• A jury direction that was wrong or absent, particularly on identification, consciousness of guilt or the elements.
• Fresh evidence not reasonably available at trial that could have affected the verdict.

Grounds that almost never succeed: disagreeing with which witness was believed, saying the sentence felt harsh, and dissatisfaction with your previous lawyer without evidence that the conduct of the trial caused a miscarriage.

The risks of appealing

An appeal is not risk free. On a section 222 appeal a District Court judge can increase a sentence. Costs can be ordered against an unsuccessful appellant in some circumstances. A successful conviction appeal often results in a retrial rather than an acquittal, which means running the whole case again.

Get the transcript and a written advice on prospects before you file. If your prospects are poor, the honest advice is not to appeal, and you should expect to be told that plainly.