Criminal appeals from the NSW Local Court

These pages describe the process for making appeals and applications for leave to appeal to the Land and Environment Court against decisions of the Local Court in proceedings for environmental offences. For example, in certain circumstances, appeals or applications for leave to appeal may be made with regard to a Local Court decision for; conviction, sentence or dismissal of proceedings.

The Land and Environment Court is empowered by s 21A of the Land and Environment Court Act 1979 to hear and finalise appeals made under s 31 (for defendants) or s 42 (for prosecutors) of the Crimes (Appeal and Review) Act 2001. These matters are allocated to Class 6.

The Land and Environment Court is also empowered by s 21B of the Land and Environment Court Act 1979  to hear applications for leave to appeal made under s 32 (for defendants) or s 43 (for prosecutors) of the Crimes (Appeal and Review) Act 2001, and to hear and finalise the subsequent appeals. These matters are allocated to Class 7.

Practice and procedure 

The practice and procedure for appeals and applications for leave to appeal in Classes 6 and 7 of the court’s jurisdiction are stated in the Crimes (Appeal and Review Act) , s 21A and s 21B of the Land and Environment Court ActPt 5 r 5.2 of the Land and Environment Court Rules 2007, and the adopted provisions of Pt 55 and Pt 75 of the Supreme Court Rules 1970 and of the Uniform Civil Procedure Rules 2005.


Process for criminal appeals

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Appeals ‘as of right’: defendants

Section 31(1) (for defendants) of the Crimes (Appeal and Review) Act 2001 says:

Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

Subsection (1A) notes that an automatic right of appeal does not apply in respect of a conviction if:

  • the person was convicted in his or her absence, or 
  • following the person’s plea of guilty.

For more on appeals made in these circumstances, see ‘ Appeals requiring an application to the Court for leave: defendants’ below.

Appeals ‘as of right’: prosecutors

Section 42 (for prosecutors) of the Crimes (Appeal and Review) Act 2001 says:

(1) The Director of Public Prosecutions may appeal to the Land and Environment Court against a sentence imposed on a person by the Local Court in relation to an environmental offence for which proceedings have been prosecuted by or on behalf of a public authority (other than the Environment Protection Authority).

(2) The Environment Protection Authority may appeal to the Land and Environment Court against a sentence imposed on a person by the Local Court in relation to an environmental offence for which proceedings have been prosecuted by or on behalf of the Environment Protection Authority.

(2A) The prosecutor (other than the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against a sentence imposed by the Local Court in any summary proceedings in relation to an environmental offence, but  only on a ground that involves a question of law alone.

(2B) The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against:

(a) an order made by the Local Court that stays any summary proceedings for the prosecution of an environmental offence,

or

(b) an order made by the Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence,

or

(c) an order for costs made by the Local Court against the prosecutor in any summary proceedings with respect to an environmental offence,

but only on a ground that involves a question of law alone.

Appeals ‘as of right’: defendants

Section 31(1) (for defendants) of the Crimes (Appeal and Review) Act 2001 says:

Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

Subsection (1A) notes that an automatic right of appeal does not apply in respect of a conviction if:

  • the person was convicted in his or her absence, or 
  • following the person’s plea of guilty.

For more on appeals made in these circumstances, see ‘ Appeals requiring an application to the Court for leave: defendants’ below.

Appeals ‘as of right’: prosecutors

Section 42 (for prosecutors) of the Crimes (Appeal and Review) Act 2001 says:

(1) The Director of Public Prosecutions may appeal to the Land and Environment Court against a sentence imposed on a person by the Local Court in relation to an environmental offence for which proceedings have been prosecuted by or on behalf of a public authority (other than the Environment Protection Authority).

(2) The Environment Protection Authority may appeal to the Land and Environment Court against a sentence imposed on a person by the Local Court in relation to an environmental offence for which proceedings have been prosecuted by or on behalf of the Environment Protection Authority.

(2A) The prosecutor (other than the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against a sentence imposed by the Local Court in any summary proceedings in relation to an environmental offence, but  only on a ground that involves a question of law alone.

(2B) The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against:

(a) an order made by the Local Court that stays any summary proceedings for the prosecution of an environmental offence,

or

(b) an order made by the Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence,

or

(c) an order for costs made by the Local Court against the prosecutor in any summary proceedings with respect to an environmental offence,

but only on a ground that involves a question of law alone.

Appeals ‘as of right’: defendants

Section 31(1) (for defendants) of the Crimes (Appeal and Review) Act 2001 says:

Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

Subsection (1A) notes that an automatic right of appeal does not apply in respect of a conviction if:

  • the person was convicted in his or her absence, or 
  • following the person’s plea of guilty.

For more on appeals made in these circumstances, see ‘ Appeals requiring an application to the Court for leave: defendants’ below.

Appeals ‘as of right’: prosecutors

Section 42 (for prosecutors) of the Crimes (Appeal and Review) Act 2001 says:

(1) The Director of Public Prosecutions may appeal to the Land and Environment Court against a sentence imposed on a person by the Local Court in relation to an environmental offence for which proceedings have been prosecuted by or on behalf of a public authority (other than the Environment Protection Authority).

(2) The Environment Protection Authority may appeal to the Land and Environment Court against a sentence imposed on a person by the Local Court in relation to an environmental offence for which proceedings have been prosecuted by or on behalf of the Environment Protection Authority.

(2A) The prosecutor (other than the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against a sentence imposed by the Local Court in any summary proceedings in relation to an environmental offence, but  only on a ground that involves a question of law alone.

(2B) The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against:

(a) an order made by the Local Court that stays any summary proceedings for the prosecution of an environmental offence,

or

(b) an order made by the Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence,

or

(c) an order for costs made by the Local Court against the prosecutor in any summary proceedings with respect to an environmental offence,

but only on a ground that involves a question of law alone.

Steps

Helpful materials

For links to useful Court information and documents, legislation, case studies and decisions relating to Class 6 and 7 appeals against NSW Local Court decisions, see Helpful materials.

Criminal appeals
Image: Criminal appeals
Last updated:

18 Dec 2020

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