Can You Appeal Twice? Understanding Finality in Criminal Appeals
The right to appeal is a vital safeguard in the criminal justice system. It allows defendants to challenge convictions or sentences that may have been reached through legal or procedural errors. But what happens if your first appeal fails? Can you appeal twice in Australia?
This question goes to the heart of a key legal principle — finality in criminal law. This article explains what “finality” means, when second or further appeals are possible, and what recent cases reveal about reopening criminal convictions after an unsuccessful appeal.
The Principle of Finality in Criminal Law
Why Finality Matters
The criminal justice system places great importance on **finality** — the idea that once a case has been decided, it should come to an end. This ensures certainty for victims, defendants, and the community. Without finality, legal proceedings could drag on indefinitely, undermining confidence in the justice system.
However, finality must be balanced against justice. If a person has been wrongfully convicted, the law provides limited mechanisms to reopen the case and prevent a miscarriage of justice.
The Role of the Appeal Courts
Appeal courts exist to correct errors made in the trial process. A defendant generally has **one right of appeal** to a higher court, such as the Court of Criminal Appeal or Court of Appeal, depending on the jurisdiction. Once that appeal has been heard and determined, the decision is usually final.
Beyond that point, further appeals or re-hearings are allowed only in exceptional circumstances — typically where new and compelling evidence emerges or where there has been a significant procedural irregularity.
Can You Appeal a Criminal Conviction Twice?
Appealing to the Next Highest Court
In most Australian jurisdictions, a defendant convicted in a lower court has one right of appeal: – From the **Magistrates Court** to the **District or Supreme Court**; – From the **District or Supreme Court** to the **Court of Appeal or Court of Criminal Appeal**.
If the Court of Appeal dismisses the appeal, the next step — appealing “twice” — would generally mean applying for special leave to appeal to the High Court of Australia.
Special Leave to the High Court
The High Court does not automatically hear second appeals. Instead, an appellant must first apply for **special leave to appeal**, which is granted only if the case involves: – A question of law of public importance; or – The need to resolve differences between state courts; or – The possibility of a serious miscarriage of justice.
Only a small fraction of special leave applications succeed — often less than 10%. This means that while a “second appeal” is technically possible, it is rare and highly restricted.
New Appeal Rights for Fresh and Compelling Evidence
In recent years, some states (including South Australia, Tasmania, and Western Australia) have reformed their criminal appeal laws to allow **a second or subsequent appeal** in very specific situations.
Under these laws, a second appeal may be allowed if:
There is fresh and compelling evidence; and
The evidence would likely have resulted in an acquittal if it had been available at the original trial.
These provisions were introduced after several high-profile wrongful conviction cases, reflecting growing recognition that justice may sometimes require revisiting finalised convictions.
Understanding “Fresh and Compelling Evidence”
What Counts as Fresh Evidence?
Fresh evidence is evidence that: 1. Was not available at the time of the trial; and 2. Could not have been discovered with reasonable diligence.
Examples include new DNA results, new expert opinions, or witnesses who come forward years later. Evidence that was known but not used at trial usually does not qualify.
What Makes Evidence Compelling?
Evidence is considered compelling if it is **credible, reliable, and significant** enough that a jury would probably have acquitted the accused if it had been presented originally. Courts apply this test carefully to avoid reopening cases without a strong basis.
Examples from Australian Case Law
Recent cases demonstrate how these laws work in practice. In several state appellate decisions, second appeals have succeeded where new forensic or witness evidence cast serious doubt on a conviction.
However, most second appeals are still dismissed because the evidence, while new, is not considered compelling or likely to change the outcome. Courts balance the need to correct injustices against the public interest in finality.
Reopening an Appeal After Dismissal
Exceptional Circumstances Rule
Even without new evidence, courts retain a limited power to **reopen or revisit** an appeal in exceptional circumstances — for instance, if there was a procedural error in how the first appeal was conducted.
However, this power is used sparingly. Once the appellate court has delivered its judgment, the case is considered concluded unless there are extraordinary reasons to intervene.
The High Court’s Approach
The High Court has consistently affirmed that the principle of finality must be respected. It has held that criminal litigation should not be reopened merely because an appellant is dissatisfied with the outcome. Only cases involving substantial injustice, fresh evidence, or constitutional questions will justify a further hearing.
Practical Reality: Finality After One Appeal
In practice, the vast majority of criminal cases in Australia end after the first appeal. Few proceed further, and even fewer succeed on a second attempt. This reflects the law’s emphasis on bringing disputes to a close while preserving limited options for correcting serious errors.
Policy Debates and Reform Trends
Balancing Justice and Certainty
Legal commentators and human rights advocates continue to debate whether the finality principle strikes the right balance. On one hand, finality promotes efficiency and public confidence; on the other, strict adherence can entrench wrongful convictions.
Recent Legislative Reforms
South Australia was the first state to legislate a **second right of appeal** in 2013, followed by Tasmania (2015) and Western Australia (2019). These reforms have inspired national discussion about whether similar provisions should apply nationwide.
The reforms recognise that modern forensic techniques, especially DNA testing, can uncover new evidence years after trial. They aim to prevent injustices while maintaining respect for final court decisions.
Implications for the Future
If other states adopt similar legislation, defendants across Australia may have more consistent access to second appeals based on new and compelling evidence. However, courts will likely continue to guard against frivolous or repetitive appeals to protect the system’s integrity.
Conclusion
So, can you appeal twice in Australia? The answer is yes, but only in very limited circumstances.
Generally, you have one right of appeal to a higher court.
A second appeal may be possible only through special leave to the High Court or under fresh and compelling evidence provisions in certain states.
Courts strongly value finality but recognise exceptions to prevent miscarriages of justice.
The key takeaway is that while the law allows a narrow pathway for second appeals, success requires clear, credible, and persuasive grounds. Anyone considering a second appeal should seek expert legal advice to assess eligibility and prospects.
Ultimately, the Australian criminal justice system seeks to balance two vital goals — the finality of convictions and the correction of injustice when new evidence demands it.
