Legal appeals in Port Macquarie

The right to appeal a verdict is an integral aspect of Australian law. When you receive a verdict in criminal, civil or family court, you may wish to appeal the decision to a higher court, or you may wish to appeal against the severity of a sentence in a criminal case. Such a process is called an appeal, as you will typically go from a local Court to a District Court or a Federal Court to a full Federal Court.

Success in an appeal is always difficult for an appellant. In Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 per Kitto J held at 627:

the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.

A decision will not be set aside by a court of appeal merely because the appeal division Judges would have come to a different result than the first instance judge. Rather, an appellant must be able to show an error by the judge at first instance which renders the judgment unsafe to such a degree that it should be set aside.

Annulling Convictions

There are instances where a lower court makes a judgement against a client if they did not attend court. If you did not attend due to negligence, you might not have much of a case. However, sickness and genuine mistakes are two common reasons why someone may miss a crucial court date and have a judgment rendered without their presence.

With such cases, Hannaway Lawyers can help you have the court decision reversed so that you can have your say in front of a magistrate or Judge at a later date.

Appealing Convictions
If you were present at court with your solicitor for the entirety of a trial, there is still the possibility of appeal. Whether it is a criminal, traffic, family, civil or probate court matter, you can ask your solicitor to appeal the case in a higher court. Hannaway Lawyers handles two kinds of appeals for its clients-ones where we had carriage of the original case and ones where another firm had carriage of the case. Many of our clients come to us hoping for new representation for their appeal, while we also have clients who are happy to stick with us through the appeal process after an initial unfavourable verdict.

Per law, it is essential to lodge an appeal within 28 days of the finalisation of the case in local court. There is a chance to appeal between 28 days and three months, but you will have to receive special permission from the court to do so.

Appealing a Harsh Sentence

There are instances where you may not want to appeal the finding of guilt from a local court. Perhaps you pleaded guilty or you are aware that you do not have much of a case to appeal your innocence. However, you may find that your initial sentencing was excessive.

Hannaway Lawyers can appeal to a higher court on your behalf to appeal the severity of your penalty.

Supreme Court Appeals in Criminal Cases
Supreme Court appeals are rare, but occasionally you might find yourself there due to the police or other party appealing after a successful local court hearing or you may want to appeal a point of law yourself.

Such appeals are very tricky, but Hannaway Lawyers has worked notable cases in the Supreme Court.

When we strongly believe in the case, we encourage our clients to file an appeal in the Supreme Court of NSW.

Family Court Appeals

In Family Law matters, you can seek leave to appeal to the Family Court from the Federal Circuit Court.

You need to be able to demonstrate:

(a) That the original decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(b) That substantial injustice would result if leave were refused, supposing the decision to be wrong

Under the Family Law Act, judicial officers are given a wide discretion as to what orders to make, whether related to parenting or property. Appeals from discretionary judgments can be made on a number of grounds.

There are 8 typical grounds of appeal in family law matters. These are:
(1) The learned trial judge acted upon a wrong principle
(2) The learned trial judge took into account irrelevant matters
(3) The learned trial judge erred on the facts
(4) The learned trial judge failed to take into account a material consideration
(5) The learned trial judge’s decision was plainly unreasonable or unjust
(6) The learned trial judge was biased
(7) The learned trial judge failed to afford a party procedural fairness
(8) The learned trial judge provided inadequate reasons
Appeals are by their nature difficult to win. As noted above, courts of appeal start from the presumption that the first instance judgment is correct. The appellant must rebut that presumption based on strict principles. Appeals are not a ‘second bite at the cherry. Typically, there is no opportunity for fresh evidence to be heard, but rather are strictly in relation to questions of law. For clients, they may feel removed from the appeal process, where technical legal arguments prevail over issues of fact. Furthermore, it is important to note the wait times in relation to the appeal division. As noted above, is it not unlikely for an appeal to take 12 months from the date of filing. This is particularly important to take into account when appealing from an interim decision-it may be that the final hearing of the substantive matter will be heard faster than (or at a similar time to) the appeal. If you feel as though your case could be appealed, and you wish to obtain some initial advice, please contact us to discuss whether you could consider taking that step.
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