Section 42 of The Magistrates Court Act 1991 (SA), and the Supreme Court Civil Rules 2006 outline the rights of appeal for South Australia. Under this Act, the Full Court (the Supreme Court / Court of Criminal Appeal, consisting of three Judges) deals with all appeals from the District Court and the Supreme Court. The Supreme Court, with one Judge presiding, deals with appeals from Magistrate Courts and Tribunals.
Appeals are most often made against the severity of the sentence, or against the conviction, and may lead to a confirmation of the original judgement, a variation of the original judgement, or quashing of the judgement. The circumstances for which an appeal is considered are strict; the appeals court must be convinced that the original judgement was manifestly excessive or unsupported by law, that there was a mistake in law, or that there was some other miscarriage of justice. A new decision may be handed down immediately, or set for a future rehearing.
If an appeal is made against a Magistrate Court decision, it may be against the conviction or sentence; however, if it is against the conviction, the appeal must be based on an error of law, as opposed to fact.
For appeals against Supreme Court or District Court decisions, the appeal against a conviction may be made on any ground that only involves a question of law; however, the leave (permission) of the court will need to be sought for:
- appeals against the sentence,
- appeals against conviction on any ground involving a question of fact, mixed law and fact or another ground of appeal,
- Appeals against any other ground deemed sufficient by the Court.
An application for appeal must be lodged with the Court of Criminal Appeal within 21 days of the original decision date. Applications lodged after 21 days may still be considered under limited circumstances, and must be accompanied by an extension request.
If a Court decision is made without the defendant being present, which is known as an ex parte conviction, the defendant may appeal to have the decision set aside, if they can prove that their absence was due to a reasonable and unforeseeable circumstance. Under Section 76a of the Summary Procedure Act 1921 (SA), an appeal form, for an ex parte appeal, must be submitted within 14 days of the original conviction; however, applications after 14 days may still be considered under limited circumstances.