Review and appeals

Review and Appeals

[52-000] Introduction

Last reviewed: May 2026

The principal Act dealing with appeals and reviews is the Crimes (Appeal and Review) Act 2001 (C(AR) Act) and, unless otherwise specified, all references to sections in this chapter relate to this Act. Matters dealt with under this Act include:

criminal appeals to the District Court, Supreme Court and Land and Environment Court
Local Court review of Local Court decisions, including AVOs,
appeals in relation to application notices commenced under the Local Court Act 2007.

[52-020] Local Court review of Local Court decisions

Last reviewed: May 2026

Annulment of conviction or sentence

The relevant provisions are found in ss 4–10A in Pt 2 of the C(AR) Act.

The main features include:

an application for annulment of conviction or sentence is to be made to the same Local Court: s 4(1).

Note:

although the hearing of an application must take place at the same court where the original decision was made, an application may be filed at any Local Court registry.
an application must be made within two years of the conviction or sentence: s 4(2)(a)
an application may be made by the defendant only if they were not in appearance before the court when the conviction or sentence was imposed (s 4(1A)), and did not lodge a notice in writing under s 182 Criminal Procedure Act 1986 in respect of the offence for which they were convicted or sentenced (s 4(1B)).
the Local Court may, on its own motion in the interests of justice, annul a conviction or sentence made or imposed by the court if the defendant was not before the court when the conviction or sentence was imposed: s 4A
the Local Court must grant an annulment application by a defendant if satisfied:

(a)

the defendant was not aware of the proceedings until they were completed, or

(b)

the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original proceedings, or

(c)

it is in the interests of justice to do so having regard to the circumstances of the case: s 8(2).
Note:
in Miller v DPP [2004] NSWCA 90, the Court provided the following guidance in relation to the application of s 8(2):
- The provisions of s 8(2) should be widely construed, and the word “misadventure” read widely: [39].
- The word “hindered” in s 8(2)(b) does not only mean “prevented” but also “impeded” or “obstructed”, and something more or less difficult, but not impossible: [25], [40].
- It would seem that, by using the words “taking action in relation to the relevant proceedings” in s 8(2)(b), the legislature has chosen wide vague words with the intention that if the defendant is hindered by misadventure or otherwise from doing some act or thing in relation to the proceedings not limited to attending court, then the conviction or sentence may be annulled: [41].
the Local Court must grant an an annulment application by the prosecutor if satisfied that there is just cause for doing so, having regard to the circumstances of the case: s 8(1)
an annulment may be granted in relation to a finding of guilt made by the Local Court, whether or not the court proceeds to conviction: s 10A.
Note:
for this purpose, a reference in Pt 2 to a:
- “conviction” includes a reference to a finding of guilt; and
- “sentence” includes any order made under s 10 or s 11 of the Crimes (Sentencing Procedure) Act 1999 on finding a person guilty of an offence.
Further, “sentence” is defined in s 3 of the C(AR) Act and “conviction” is defined in s 3(2)(a) of the C(AR) Act insofar as it relates to Children’s Court proceedings.
an application may be dealt with in open court, in the presence or absence of the parties or in private: s 7(1).

Where a court, dealing with an absent defendant, records a conviction or finding of guilt and issues a warrant, there is no bar to a defendant when subsequently facing sentence being dealt with “without conviction”: see DPP v Arab [2009] NSWCA 75 at [31]–[36].

Review and appeal provisions — apprehended violence orders

Section 84(1) Crimes (Domestic and Personal Violence) Act 2007 provides a defendant may make an application under Pt 2 Crimes (Appeal and Review) Act C(AR) Act for the annulment of an apprehended violence order (AVO) in the same way as an application under that Part for annulment of conviction or sentence arising from a court attendance notice dealt with under the Criminal Procedure Act.

Similarly, if the court dismisses an AVO application because the applicant was not before the court, s 84(1A) Crimes (Domestic and Personal Violence) Act provides they may apply to the court for the annulment of the dismissal of the AVO application.

Section 84(1B) Crimes (Domestic and Personal Violence) Act provides the court may grant an application for an annulment made under s 84(1A) if it is satisfied there is just cause to do so.

Section 84(2) provides a right of appeal to the District Court.

Review and appeal provisions — application notice proceedings

Part 4 Div 2 Local Court Act contains the provisions relating to commencement of proceedings by way of application notice. Section 70(1) Local Court Act provides an application for annulment of an order may be made in accordance with the C(AR) Act. The section also provides for appeals to the District Court (s 70(1)(a)) and Supreme Court (s 70(1)(b)), in the same way.

[52-040] Appeals to Supreme Court

Last reviewed: May 2026

The law relating to criminal appeals to the Supreme Court is set out in Pt 5 Crimes (Appeals and Review) Act 2001 (C(AR) Act). For appeals from civil claims decisions to the Supreme Court, see ss 39(1), 40 Local Court Act 2007 and Sch 1 Civil Procedure Act 2005; Pt 50 Uniform Civil Procedure Rules 2005.

Appeals may be made against a conviction or sentence on questions of law and/or fact, and the leave of the Supreme Court is required in respect of appeals involving a question of fact: ss 52(1), 53(1) C(AR) Act. A “conviction” includes a finding of guilt without formal order of conviction: Darlington v DPP (NSW) [2023] NSWSC 1139 at [9]–[12]; Selkirk v DPP [2020] NSWSC 1590 at [27]–[28].

An appeal is instituted by filing a summons: Pt 51B r 5(1) Supreme Court Rules 1970 (SCR). It must be instituted within 28 days after the “material date”: SCR Pt 51B r 6(1), although it may be extended, including by the Local Court in certain circumstances SCR Pt 51B r 6(2), (3). If an application is made under Pt 2 C(AR) Act (annulment applications etc (see above)), the time for instituting an appeal does not start to run until that application is finalised: SCR Pt 51B r 6(1A).

Note:: a transcript of the proceedings will be ordered and the Reporting Services Branch (RSB) of the Department of Communities and Justice will provide the Local Court judge with an opportunity to revise the transcript of reasons for a decision. The judge has three business days to advise RSB they will revise the transcript, and upon notifying RSB, five business days to revise the transcript and return it.

A judge may revise a transcript of reasons for a decision, by altering the transcript where the reasons expressed do not reflect what the judge meant to say; where there is some infelicity of expression which the judge wishes to change; to correct errors of grammar or syntax; or to add case references or case citations for cases referred to, however, the substance of the reasons may not be changed: M Gleeson, “Revising Transcripts of Summings-up” (1997) 9(4) JOB 25; Council of Chief Justices of Australia and New Zealand, Guide to judicial conduct (2026) at [4.1.5]; see also the High Court’s discussion regarding the review of decisions in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329 at [30]–[34].

The execution of a sentence is stayed when a notice of appeal is given, unless the appellant is in custody: s 63(2) C(AR) Act. This includes a suspension or disqualification arising from a conviction for the offence, whether the appeal is against the conviction or associated sentence, unless, immediately before those proceedings, a suspension was in force under Pt 7.4 Div 4 Road Transport Act 2013 (or a former corresponding provision) for the offence: s 63(2A), (2C) C(AR) Act. If the appellant is in custody, the sentence is stayed when the appellant is entitled to be released on bail under s 14 Bail Act 2013, or bail is dispensed with: s 63(2)(c) C(AR) Act.

A copy of the summons instituting the appeal will usually be sent to the Local Court judge who made the determination. When the Supreme Court determines an appeal, the court may:

set aside the conviction, or
set aside or vary the sentence, or
set aside the conviction or sentence, and remit the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court’s directions, or
dismiss the appeal: s 55.

[52-060] Appeals to District Court

Last reviewed: May 2026

The law relating to criminal appeals to the District Court is set out in Pt 3 Crimes (Appeal and Review) Act 2001 (C(AR) Act).

Appeals to the District Court against conviction or sentence must be made within 28 days (or within three months from conviction or sentence by leave of the District Court): ss 11, 13(2); see further discussion in Huynh v R (2021) 105 NSWLR 384 at [22]–[35].

Appeals against the Local Court’s refusal of application for annulment of conviction or sentence must be made within 28 days after the Local Court notifies the defendant of its refusal of the application (or within three months from the refusal of the annulment application by leave of the District Court): ss 11A(2), 13(2).

Appeals against sentence are by way of rehearing of evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings: s 17. Appeals against conviction are by way of rehearing on the transcripts of evidence, subject to a grant of leave to call fresh evidence or for witnesses to attend: s 18.

When the District Court determines an appeal, the court may:

set aside the conviction, or
set aside or vary the sentence, or
dismiss the appeal: s 20.

In the case of a conviction appeal made with leave under s 12(1), the court may set aside the conviction and remit the matter to the original Local Court for redetermination in accordance with any directions of the District Court: s 20(1)(c).

[52-080] Civil appeals

Last reviewed: May 2026

The provisions for appeals in civil matters are found in Pt 50 Uniform Civil Procedure Rules 2005 (see also ss 39(1), 40 Local Court Act 2007 and Sch 1 Civil Procedure Act 2005). An appeal does not operate to stay at the proceedings in the Local Court (see Civil Trials Bench Book at Stay of execution at [9-0000]ff) unless ordered by the appellate court or the Local Court: r 50.7 Uniform Civil Procedure Rules. See also Civil Trials Bench Book at Appeals from the Local Court at [5-0240].

[52-100] Appeals to Land and Environment Court

Last reviewed: May 2026

The law relating to criminal appeals to the Land and Environment Court is set out in Pt 4 Crimes (Appeal and Review) Act 2001.

The execution of a sentence is stayed when a notice of appeal is given, unless the appellant is in custody: s 63(2). If the appellant is in custody, the sentence is stayed when the appellant is entitled to be released on bail under s 14 Bail Act 2013, or bail is dispensed with: s 63(2)(c).

When the Land and Environment Court determines an appeal, the court may:

set aside the conviction, or
set aside or vary the sentence, or
dismiss the appeal: s 39.

In the case of a conviction appeal made with leave under s 32(1), the court may set aside the conviction and remit the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court: s 39(1)(c).

[52-120] Bail pending appeal

Last reviewed: May 2026

Section 8 Bail Act 2013 allows for a bail decision to be made while substantive proceedings for an offence, including any appeal against conviction or sentence, are in progress. A previous grant of bail ceases to have effect when proceedings for an offence at first instance conclude (s 12(1)(b)), but a fresh bail decision can be made if an appeal is lodged: s 12(2).

Section 18(1)(j) Bail Act provides that when assessing bail concerns in a case where conviction or sentence appeal proceedings are pending, the court is to consider “whether the appeal has a reasonably arguable prospect of success”. This does not mean an applicant needs to demonstrate their appeal will “inevitably succeed”: El-Hilli v R [2015] NSWCCA 146 at [24], [29].

Further, another relevant bail consideration is that the applicant will have served their sentence or non-parole period (or a substantial part of it) before the appeal is determined: El-Hilli v R at [29]; see also, for example, R v Vaziri [2016] NSWSC 1283 at [29], [52].

For a general discussion regarding bail, see [20-000] Bail.