Appeals against criminal convictions in Queensland

How to appeal a criminal conviction or sentence in Queensland


Judges and Magistrates are merely human and, like the rest of us, sometimes make mistakes. Fortunately, the criminal justice system has mechanisms for dealing with these errors. The most conspicuous of these mechanisms is the appeals process.

The purpose of an appeal is to ask a superior court to overturn a decision (or series of decisions) of a Judge or Magistrate but only if the Judge or Magistrate made a mistake about the law and that mistake affected their decision. You cannot appeal just because you do not like the decision, or because of some general perception of unfairness.


What Can be Appealed?

Almost every decision of a Judge or Magistrate is capable of being appealed if you can identify how the Judge or Magistrate was mistaken as the law which affected the decision. In the context of jury trials, you may be able to appeal the jury’s decision to convict you if the jury was led into making a mistake during the course of the trial.

In criminal cases, arguably the two most important types of appeal are appeals against sentence and appeals against conviction. However, every decision made during a trial (such as the decision to include or exclude certain evidence) may be appealed, if the decision was made as a result of a legal error. These seemingly little decisions may have important consequences and may change the entire outcome of the trial. It is, therefore, important to get them corrected before it is too late.

In the case of an appeals against sentence, you are not arguing over whether you should have been convicted, rather, you are arguing that the sentence you received after the conviction was wrong. Usually, you appeal the sentence on the basis that it was “manifestly excessive”; ie, it was too severe. Alternatively, the Office of the Director of Public Prosecutions (the “DPP”) may also appeal a sentencing decision. Appeals by the DPP are usually on the basis that the sentencing decision was “manifestly inadequate”; ie, it was not severe enough. In some rare cases, both the person sentenced and the DPP may appeal the same decision.

In the case of appeals against conviction, you are arguing that you should not have been convicted. These types of appeal can be difficult in the case of a trial by a jury, as the jury does not give reasons for why it decided to convict you. Therefore, all the information that was given to the jury (including the directions from the Judge as to how it should go about making its decision) must be scrutinised so that it can be reasonably inferred that the jury made a legal mistake in making its decision. If you were convicted by a Magistrate in the Magistrates Court (or convicted by after a “Judge-alone” trial), finding grounds for appeal is much easier, as Magistrates and Judges do give reasons why they found you guilty. Therefore, the legal error usually (although not always) shows up in the Magistrate’s or Judge’s reasons.


Who Decides the Appeal?

Appeals against the decision of the Magistrates Court is heard by a single Judge of the District Court. If the Judge decides that no error was made, your appeal is dismissed. If the Judge grants your appeal, they may either correct the mistake themselves (for example, by re-sentencing you in the case of an appeal against sentence) or send your matter back to the Magistrates Court to correct the mistake (for example, by re-hearing your trial in the case of an appeal against conviction).

An appeal against the decision of the District Court or the Supreme Court (including jury decisions) is heard by the Court of Appeal. Usually, the Court of Appeal consists of three Supreme Court Justices who all decide your appeal. If the Justices in the Court of Appeal do not need to make a unanimous decision, as the principle of “majority rules” applies. Again, the Court of Appeal can dismiss your appeal if they believe it has no merit. Otherwise, they can grant your appeal and correct the error themselves, or send your matter back to the original court for the error to be corrected.

There is also a process to appeal an appeal. For example, if you appeal the decision of a Magistrate to the District Court, and your appeal is dismissed, you can appeal the District Court Judge’s decision to the Court of Appeal; effectively appealing the appeal. If you disagree with the decision of the Court of Appeal, the ultimate appeal lies outside of the Queensland Courts system and goes to the High Court of Australia. This latter court is the ultimate court in Australia’s justice system and makes the final decision on all matters to do with laws in Australia at both State and Commonwealth levels.


What is the Process of Appeal?

Appeals must be lodged within strict timeframes. Generally, an appeal must be filed within one month from the date of the original decision. If you try to lodge your appeal after that one-month cut-off date, you must explain to the to court to which you are appealing why you filed your appeal late. Appeals are started by filing a Notice of Appeal with the proper court (ie, the District Court or the Court of Appeal).

Once you file your Notice of Appeal, you must give a copy to the DPP. If you are appealing a decision made in the Magistrates Court, you must obtain a copy of the transcript of the court proceedings that you say contains the Magistrate’s mistake. Court transcripts are produced by Auscript who will provide you with a copy for a fee. If you are appealing a decision of the District or Supreme Courts, the Court of Appeal registry will arrange a copy of the court transcript for you. However, you will still need to pay the necessary fee.

Before your appeal is heard, you need to provide the court and the DPP with an outline of argument, which explains to the court why you claim a mistake was made in your case. To repeat, the mistake that you claim was made must be a legal error. It is not enough to simply state that you did not like the decision or thought the decision was somehow unfair. You must also provide the court with all the case-law that you claim supports your appeal and demonstrates the legal mistake you claim has been made.

Once you have written your outline, the DPP also provides a written outline to the court either supporting or opposing your appeal. The DPP must also support its outline with all the case-law on which it intends to rely to support its position.

At the hearing of your appeal, you must be able to expand upon your written outline in order to explain to the court, in detail, why you claim your appeal ought to succeed. Once you have spoken and answered all the court’s questions, the DPP will then have to justify its position. The court hearing your appeal will have already read both outlines and all the cases that both you and the DPP provided. You must be prepared to answer all the court’s questions.

At the end of the hearing, the court may have already made a decision, or it may adjourn your appeal to a later date so it can have time to consider the matter. If the court adjourns your matter, you will be told at a later date when to come back and hear the court’s decision. If your appeal is of particular interest to the court, it may publish its decision, which then forms part of Queensland’s case law.



The appeals process is an important part of our criminal justice system, as it allows mistakes made by Magistrates, Judges, and juries to be corrected by the more senior courts. However, appeals are complex applications that require highly detailed legal arguments in order to have any prospects at succeeding. You must also make sure that you meet the very strict deadlines for lodging appeals.

It is imperative, therefore, that if you are considering lodging an appeal, that you get expert legal advice.