Before prison: The criminal court process
Can I appeal my sentence?
Yes, you usually have the right to appeal your sentence. Sometimes the judge has no choice about what sentence to give and is legally required to give a particular sentence for a particular charge – but there aren’t many of these fixed sentences.
You should discuss your reasons for wanting to appeal with your lawyer. They’ll give you their opinion on your chances of success.
The prosecution (that is, the police or the Crown Law Office) can also appeal your sentence if they think it wasn’t tough enough.
How much time do I have to appeal my sentence?
Criminal procedure Act 2011, s 248
You have 20 working days from the day that you’re sentenced to file your appeal.
However, if you miss that deadline you can ask for additional time (an “extension”) to file your appeal. It’s a good idea to have a lawyer help you with your appeal, and they can also help you with getting an extension of time.
Can my sentence get worse if I appeal it?
Yes it can. Generally this doesn’t happen, but you should discuss the specifics of your case with your lawyer to work out exactly what the risk of a longer sentence is.
Can I appeal my conviction (the decision that I’m guilty)?
Yes. If you plead not guilty but you’re found guilty by a judge or jury, you can challenge that decision. This is called an “appeal against conviction”.
On what grounds can I appeal my conviction?
You can appeal your conviction if something unfair or improper happened at your trial – for example, if the judge incorrectly refused to allow certain evidence at the trial or if they gave incorrect directions to the jury before they made their decision. Talk to your lawyer about what the grounds (reasons) for appeal could be in your case.
How much time do I have to appeal against my conviction?
Criminal Procedure Act 2011, s 231
You have 20 working days from the day of your conviction to file your appeal.
If you miss this deadline you’ll have to apply for permission to appeal out of time. There are various reasons why a court might let you appeal out of time – for example, if it’s only a short time since the 20 working days were up, or if you had difficulty getting legal advice within the 20 working days but you did your best, or if you were sick or unwell. The reasons for your appeal will also be considered, so if there was significant evidence that you didn’t get until after the 20 working days, the courts will hear it.
If you believe you have a good case for an appeal the best thing to do is to discuss this with a lawyer.
Will legal aid cover my appeal?
It might. But even if you had legal aid for your trial you’ll have to apply for legal aid again for your appeal.
See “Lawyers and legal aid” earlier in this chapter
Can I be at the court for my appeal?
Criminal procedure Act 2011, s 326
If you are in prison, then you don’t have the right to be at the court to present your case, but you can apply for permission to be there (“leave to appear”). Sometimes an appearance may be by audiovisual link.
You have the right to present your case in writing if you are not given permission to attend in person.
You’re not entitled to be present if you’re appealing about some procedural issue before your trial, or if you’re appealing against a decision to refuse you bail.
I lost my appeal – what can I do now?
You should talk about your options with the lawyer who handled your appeal. They’ll be able to advise you about what options you might have.
Sometimes it’s possible to appeal all the way from the District Court, to the High Court, to the Court of Appeal, and finally to the Supreme Court. Cases that involve so many appeals are rare, but they’re possible when there’s a serious issue of justice or an area of the law that’s unclear.
Can I appeal to the Privy Council?
No. The Privy Council used to be the final appeal court for New Zealand, but it was replaced by the Supreme Court of New Zealand in 2004.