What is an annulment application?
If you do not appear in Court for your Hearing or Sentence, the Local Court can still convict and/or sentence you under s 196 of the Criminal Procedure Act 1986 (NSW). If you are not at Court when a sentence or conviction is imposed, you can make an Annulment Application under s 4 of the Crimes (Appeal and Review) Act 2001 ('the Act') to have the decision reversed.
Who can make an annulment application?
An application can be made by the Defendant who has been convicted or sentenced, or the prosecutor. A Defendant cannot make an application if they have written to the court pleading guilty and asked to be sentenced in their absence under s 182 of the Criminal Procedure Act 1986 (NSW).
How do I make an annulment application?
You will need to download and fill-out an Annulment Application Form. This is on the Local Court of NSW website.
Once you complete the form, you need to file it at the Local Court and pay a filing fee. You can file the application at any NSW Local Court, but the Court which made the original decision on your matter will deal with it.
You have two years from the date of the Court's decision to make an application (s 2(a)).
What happens while I wait for the new Court date?
It is up to the Court what happens while you wait. The Local Court can 'stay the execution' of a sentence as it thinks fit (s 7). If it stays execution of the sentence, that freezes your sentence and it will not take effect until the finalisation of your application.
What factors does the Court consider?
The Local Court will grant an application made by a Defendant if they believe:
- You were not aware of the original proceedings until after they were complete; or
- You could not attend due to an accident, illness, misadventure, or other cause; or
- Given the circumstances, it would be in the interests of justice to grant the application (s 8(2)).
It is the applicant's job to provide evidence to prove that they fall into one of these categories. This could include providing a medical certificate, calling a witness to support your explanation, or other documents or evidence that supports you. It is common for people to prepare an affidavit that outlines why you did not appear in court. An affidavit is sworn evidence, and it is best to get legal advice when preparing one.
The Local Court must grant an application made by the prosecutor if there is 'just cause for doing so' (s 8(1)).
What happens if the application is successful?
If the court grants your application, it will annul the decision and deal with the matter afresh as if the conviction or sentence never happened (s 9). If this happens, any enforcement action taken should be reversed (s 10(1)). This includes repaying any fines you paid for (s 10(3)).
The Court may deal with the matter immediately or at a later date. You will need to tell the court whether you want to enter a plea of guilty or not guilty. If it sets a new date, the Court will notify you of the date, time, and location.
What happens if the Court refuses the annulment application?
If your application is not successful, the original conviction or sentence will stay in place. You cannot make more than one Annulment Application. If the Local Court refuses to annul your conviction or sentence, you can file an appeal to the District Court of NSW within 28 days.