Crimes (Appeal and Review) Act 2001

The Act’s reach is deliberately wide. Primary addressees are:

• Defendants (including children—see s 113) who have been convicted or sentenced in the Local Court, or who have been acquitted but face an application for retrial under Part 8. They enjoy rights of appeal, annulment, and review, but are subject to strict time limits, leave requirements, and rules limiting fresh evidence.

• Prosecutors, including the Director of Public Prosecutions, the Environment Protection Authority, the Natural Resources Access Regulator, and private prosecutors in summary matters. They may appeal sentences in defined classes of case (ss 23, 42), costs orders, and, in limited circumstances, seek retrial after acquittal.

• Courts: the Local Court (review and annulment powers under Part 2), District Court (general criminal appeals), Land and Environment Court (environmental offences), Supreme Court (questions of law and review petitions), and Court of Criminal Appeal (Part 7 references and Part 8 retrial applications).

• Victims and third parties: although not direct parties, victims are indirectly affected by sentencing appeals and by the DNA-retention regime. Section 81(4) gives any person whose character may be affected by an inquiry the right to be present and cross-examine.

• Public authorities and regulators: the expanded definition in s 3(1) and the specific appeal rights granted to the EPA and Natural Resources Access Regulator in Part 4 reflect the Act’s concern with environmental and natural-resource offending.

• Legal representatives and the Attorney General: counsel appear on appeals and inquiries; the Attorney General exercises concurrent functions with the DPP (s 115) and receives reports on petitions and Supreme Court applications.

The Act does not apply to appeals from the Supreme Court or District Court on indictment (those remain under the Criminal Appeal Act 1912), nor does it disturb the prerogative of mercy (s 114).

Rights of defendants

• Right to apply for annulment if absent from original proceedings (s 4(1A), s 8(2)).
• Appeal as of right against conviction after contest or against sentence (s 11; s 31 for environmental offences).
• Right to apply for leave to appeal on fact or mixed questions (ss 12, 53).
• Right to one free copy of relevant transcripts (s 18(3)).
• Right to apply for stay of sentence pending appeal (s 63, subject to exceptions).
• Right to petition the Governor or apply to the Supreme Court for review of conviction (ss 76, 78).
• Protection against costs orders unless investigation or prosecution was unreasonable or improper (s 70).

Rights of prosecutors

• Right to appeal certain sentences and costs orders (ss 23, 42, 56).
• Right to apply for retrial on fresh and compelling evidence or tainted acquittal (ss 100, 101).
• Right to be heard on annulment applications and to receive notice (ss 6, 9, 15).

Duties

• Local Court registrars must notify parties and forward papers (ss 6, 15, 25, 35, 45).
• Police must retain biological material from serious offences subject to defined exceptions (s 96). The Commissioner of Police must respond to requests for information or testing (s 97).
• Appeal courts must give reasons for refusing directions that witnesses attend in person (ss 19(3), 38(3)).
• The Supreme Court, when exercising review jurisdiction, must act only where a doubt or question exists as to guilt, mitigating circumstances, or the evidence (ss 77(2), 79(2)).

Procedural rights
All parties are entitled to natural justice in annulment and appeal hearings (ss 7, 16A, 28, 49). The Act expressly contemplates both open and private hearings for annulment applications (s 7(1)).

The Act itself creates few standalone offences. The principal sanction is s 96(5): destroying or tampering with biological material required to be retained, with intent to prevent DNA testing, carries a maximum penalty of 10 years’ imprisonment. Contraventions of publication restrictions under s 111 are punishable as contempt of the Supreme Court. Costs orders against prosecutors are tightly constrained (s 70) but, where made, must specify a time for payment (s 72(b)).

Enforcement of appeal-court orders occurs as if they were Local Court orders (s 71(3)). Failure to appear on appeal can lead to dismissal, with a 12-month window to apply to revoke the dismissal order (ss 21–22, 40–41). Breach of a stay or bail conditions granted under the Act is enforced under the Bail Act 2013 (s 117).

In practice, the most significant “penalties” are procedural: loss of appeal rights through expiry of time limits, refusal of leave, or the statutory bar on multiple applications (ss 4(3), 11A(3), 105(1)). Section 68A prevents appeal courts from giving sentencing discounts on prosecutor appeals merely because the respondent faces re-sentencing.

The Act is a hub statute. Section 3(1) expressly incorporates definitions from the Interpretation Act 1987 and cross-references at least 15 other Acts, including the Criminal Procedure Act 1986, Crimes (Sentencing Procedure) Act 1999, Bail Act 2013, Road Transport Act 2013, Protection of the Environment Operations Act 1997 (via the definition of environmental offence), Work Health and Safety Act 2011, and Natural Resources Access Regulator Act 2017.

Part 6 is expressly subordinate to the Bail Act 2013 (s 117). Driver-licence suspensions and disqualifications interact with ss 63(2A)–(2C) and 68(1A), which preserve certain automatic suspensions but allow appeal courts to stay them in appropriate cases. Section 69 ensures that confirmation of a sentence on appeal does not disturb existing good-behaviour bonds, community correction orders or conditional release orders.

Part 7 imports the powers of a Royal Commission (s 81) and expressly continues the operation of former s 475 of the Crimes Act 1900 and Part 13A of that Act for transitional purposes. Part 8 was designed to sit alongside the common-law double-jeopardy rule and the Criminal Appeal Act 1912; s 112 preserves appeal rights under that Act where an acquittal was based on mental health impairment or cognitive impairment not raised as a defence.

The Act does not disturb the Court Suppression and Non-publication Orders Act 2010 (s 114A(3)) nor the prerogative of mercy (s 114). Its costs provisions (s 70) interact with the general costs powers of the District Court and Land and Environment Court (ss 28(3), 49(4)).

The text records more than 30 amendments between 2002 and 2025. Key legislative interventions reflect policy shifts:

• 2006 double-jeopardy reforms (Part 8, inserted by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006): responded to perceived miscarriages of justice where compelling new evidence (especially DNA) emerged after acquittal. The “fresh and compelling” and “tainted acquittal” tests were modelled on UK and other Australian reforms but with tighter safeguards.

• 2006 DNA Review Panel (Part 7, Division 6): created to provide an independent merits-based filter for post-conviction DNA testing. The Panel was abolished in 2013 because it was considered bureaucratic; direct applications to the Commissioner of Police and the Supreme Court were substituted (Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2013).

• 2009 costs and double-jeopardy amendments: s 68A was inserted to remove the “double jeopardy” discount on prosecutor sentence appeals following High Court criticism in R v Carroll and similar cases. Section 70 was tightened to protect public prosecutors from costs orders except in cases of serious misconduct.

• 2017–2025 environmental and natural-resources amendments: successive updates expanded prosecutor appeal rights for the Natural Resources Access Regulator (ss 42(2AA), 43(1B)–(1C)) and updated definitions to reflect the Natural Resources Access Regulator Act 2017 and Water Management Act 2000. These changes responded to enforcement difficulties in large-scale water theft and environmental prosecutions.

• 2025 Industrial Relations Amendment Act amendments: removed the Industrial Court from the list of courts whose acquittals can be appealed on a question of law (s 107(1)(e)), reflecting the transfer of industrial jurisdiction.

Each set of amendments has been justified by the need to modernise procedure, strengthen enforcement of environmental laws, respond to scientific advances in DNA evidence, and balance finality against the public interest in correcting serious errors.

Although the Act itself has generated relatively few reported constitutional challenges, its provisions have been litigated extensively. The “interests of justice” test in ss 100(1)(b), 101(1)(b) and 104 has produced appellate guidance on factors such as delay, prosecutorial diligence, and the reliability of fresh evidence. The Supreme Court has emphasised that Part 8 does not create a general right of appeal but a narrow exception that must be exercised sparingly.

The DNA-retention regime (s 96) has been criticised for imposing open-ended storage obligations on police. In practice, disputes have arisen over whether particular material falls within the “impracticable to retain” exception (s 96(3)(c)) or whether a swab is sufficient (s 96(2A)).

Part 7 inquiries have occasionally raised procedural fairness questions, particularly the extent to which a judicial officer must permit cross-examination of every witness whose character might be affected (s 81(4)). The non-judicial character of Supreme Court review under s 79(4) has been upheld as constitutional.

Controversy also surrounds the breadth of prosecutor appeal rights in environmental matters. Regulators have argued that the “question of law alone” limitation (s 42(2A)) unduly restricts their ability to correct manifestly inadequate sentences. Conversely, defence counsel have contended that the low threshold for “substantial reasons” to call oral evidence (s 38) risks turning rehearings into full trials de novo.

No High Court decision has struck down any provision, but the interaction between s 68A and common-law sentencing principles continues to generate appellate litigation.

Most practitioners miss the following traps:

• The “absence” distinction: a defendant convicted in their absence has no appeal as of right against conviction to the District Court (s 11(1A)) and must first seek annulment or obtain leave under s 12. Many appeals are dismissed at the leave stage because counsel overlook s 12(2), which bars leave if an annulment application could still be made.

• One-bite rule in Part 8: only one application for retrial may be made on fresh-and-compelling grounds (s 105(1)). A second application is possible only on tainted-acquittal grounds after a retrial has already occurred (s 105(1A)). The 28-day limit from charge or warrant is unforgiving; extensions are granted only for “good cause”.

• Biological material time bomb: the duty to retain material under s 96 continues until the convicted person is no longer subject to any sentence, parole, extended supervision order or continuing detention order. Destruction after that date can still be unlawful if done with intent to frustrate a pending Part 7 application.

• Costs protection is narrow: s 70(1) lists four exhaustive gateways. “Exceptional circumstances” is not a catch-all; courts have read it ejusdem generis with the preceding paragraphs. Private prosecutors (including approved charitable organisations under the Prevention of Cruelty to Animals Act 1979) fall outside the protection.

• Stay does not always stay: driver licence disqualifications are not automatically stayed (s 63(2A)), and a prosecutor can apply to lift any stay granted under s 63(4) on the basis of undue delay.

• Section 3(3A) trap: an appeal court’s power to vary a sentence includes the power to set aside a conviction while leaving the finding of guilt intact so that a s 10 Crimes (Sentencing Procedure) Act 1999 dismissal can be imposed. Many counsel argue for a full conviction quashing when a s 10 order is the real objective.

• Publication contempt: breaching s 111 restrictions is contempt even if the material is already in the public domain through other means. The prohibition survives until all possible retrial avenues are exhausted.

For defence practitioners

1. Diary every 28-day limit from sentence or annulment disposal (ss 11(2), 31(2), 52(2)).
2. Where the defendant was absent, file an annulment application under s 4 before or concurrently with any appeal.
3. When seeking to adduce fresh evidence, file an affidavit addressing both the reasonableness of earlier non-discovery and why the interests of justice favour admission (ss 18(2), 37(2)).
4. On prosecutor appeals, prepare detailed written submissions on the s 104 “interests of justice” factors, emphasising delay and any investigative shortcomings.
5. For Part 7 petitions, obtain all available biological-material information under s 97 before petitioning; the Supreme Court will rarely direct an inquiry if DNA testing has not been exhausted.

For prosecutors

1. Obtain written DPP or EPA consent before any post-acquittal investigation that would engage s 109.
2. On sentence appeals, ensure the notice of appeal particularises the specific sentencing error and addresses why the original sentence was manifestly inadequate.
3. When resisting a Part 8 retrial application, lead evidence (if available) of forensic or investigative steps that could have been taken earlier, to engage the diligence limb of s 104(3)(b).
4. Retain all biological material until the statutory retention period expires or a court orders otherwise; document decisions to take swabs rather than bulk material (s 96(2A)).

For courts and registries

1. Use the exact statutory language when notifying parties under ss 6, 9, 15, 21 and 40.
2. When granting leave to appeal out of time, record the reasons why the interests of justice are engaged (ss 16(2), 36(2)).
3. On DNA requests, the Commissioner must respond promptly; a compliance order under s 97(4) can be made if the statutory criteria are met.

Institutional compliance
Agencies should maintain a register of retained biological material (s 96) and train investigators on the limits imposed by s 109 before commencing cold-case work on acquitted persons. Regular legislative updates (the Act has been amended more than 30 times) require practitioners to check the latest version on the NSW legislation website rather than relying on annotated texts that may lag.

By following these steps, parties and their advisers can navigate the Act’s procedural maze while minimising the risk of appeals being dismissed on technical grounds or applications being refused for want of diligence. The legislation rewards early, well-documented action and punishes delay or procedural laxity.