Appeals in criminal cases – what is the process?

You can appeal the sentence you received in the Magistrates, District, or Supreme Court. You can also appeal the conviction, if you were convicted after a trial or even in some cases if you pleaded guilty. That is, you can appeal the finding that you are guilty of the offence.

Magistrates Court sentences or convictions are appealed to a single Judge of the Supreme Court.

District and Supreme Court sentences or convictions are appealed to the Court of Appeal. This is the highest court in Western Australia.

You can also appeal the decision of a Judge of the District or Supreme Court to refuse to order separate trials. This is called an “interlocutory” appeal. This is the only appeal that can be lodged before you are found guilty of anything.

So there are really three “types” of appeals you can lodge:

1. Sentence appeal;
2. Conviction appeal; &
3. Interlocutory appeal against decision of a Judge to refuse to order separate trials.

The process of lodging an appeal against your conviction, sentence or separate trial decision involves a number of different steps.


Step 1: Appeal notice – within time limit

The first step is to lodge an appeal notice with the appropriate court. This contains “grounds of appeal” which are reasons why your sentence or conviction should be overturned. There are strict time limits for filing either of the three different types of appeals previously outlined.

Magistrates Court conviction/sentence time limit

You must lodge an appeal within 28 days of any Magistrates Court sentence or conviction. In a conviction case, the time limit begins to run from the date when you are sentenced. So, as is often the case, if you are sentenced 6 weeks after a Magistrate finds you guilty, the 28 days runs from the end of the 6 week period after you are sentenced, not from the date you were found guilty by the Magistrate.

District or Supreme Court conviction/sentence time limit

For a District or Supreme Court sentence or conviction, you only have 21 days to lodge an appeal. Again, in a conviction appeal the 21 days begins from the date you are sentenced.

District or Supreme Court interlocutory decision to refuse to order separate trials

In a separate trials appeal, you only have 7 days to lodge an appeal. This time limit commences from the date the Judge refuses to order separate trials.

Can I lodge an appeal notice if the time limit has passed?

In the case of a conviction or sentence appeal, you can still lodge an appeal notice even if the time limit has expired. This is called lodging an appeal notice “out of time”. You must file an affidavit explaining why you did not file an appeal notice within time. The court may refuse to allow the appeal on the basis that it is out of time and the delay has not been adequately explained. You can’t lodge an appeal against a separate trials decision if you are out of time.


Step 2: Appellant’s case

After lodging the appeal notice, you must lodge the “Appellant’s Case”. This is a detailed document outlining the arguments in support of your ground(s) of appeal specified in your appeal notice. It also contains a draft index of the “appeal books”, which you must prepare whenever you file any appeal. These contain all the documents the appeal court will consider when deciding the appeal.


Step 3: Leave to Appeal

A single Judge of the Supreme Court must grant you leave to appeal on each ground of appeal. Leave can be refused if a ground of appeal has no reasonable prospect of succeeding. Often, a single Judge will refer the question of leave to the actual appeal hearing, and the appeal court will consider both leave and the appeal grounds at the same time.


Step 4: Respondent’s answer

Next the respondent, who is usually either the police or the Director of Public Prosecutions, will file their “respondent’s answer”, which contains their response to your “appellant’s case”. This will contain counter-arguments but in some cases may contain an acknowledgement that your ground of appeal should succeed. This is called “conceding” an appeal ground and occurs in cases where there is no response to your ground of appeal and the respondent is of the view the court must allow that ground of appeal.

The respondent will also reply to your appeal book index, possibly suggesting other documents that should be included.


Step 5: Appeal books

The court will confirm the final appeal book index after receiving the respondent’s answer. The next step is for the Appellant to prepare the appeal books. This requires you to:

  • Finalize the appeal book index by numbering where each item in the appeal book is found;
  • Obtain all the documents that go in the appeal book and place them in the order of the index;
  • Place numbering down the left-hand margin of each page of each document in the appeal book. This is so that the court can easily refer to portions of a document in the appeal hearing; &
  • Sign a “certificate of correctness”, certifying the documents in the appeal book are accurate.

The appeal books are then given to the respondent for checking.

If everything is OK, the respondent will sign the certificate of correctness. You must then file bound copies of the appeal books and serve them on the respondent.


Step 6: Appeal hearing

The second last step is the appeal hearing. This involves you or your lawyer presenting oral argument to the court, in order to convince the court to allow your appeal. The appeal hearing can be quite brief but in other cases can be very lengthy. It all depends on the circumstances of your particular case.


Step 7: Judgment

The final step is the court providing a written judgment. This is a detailed document outlining why the court either allows or refuses your appeal, and indicating what orders will be made on appeal. An example of orders commonly made are quashing the conviction and ordering a retrial; or reducing your sentence to a lesser sentence.



The appeal process is complex and properly completing each step of the process requires skilled legal representation. If done well, it is possible to have your conviction overturned, sentence reduced or a separate trials decision reversed. This document only outlines a very basic summary of what is involved in lodging an appeal – there is much more to it than is listed here. If you are thinking about lodging an appeal in your case, don’t hesitate to contact James Jackson Criminal Defence for expert advice today.

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