Annulment Application – What to do if you fail to appear in court and the court determines your case

 

The Local Court can sentence and convict you for certain offences in your absence where you fail to appear in court. These offences include various criminal and traffic offences, such as some drink driving offences, and drug driving offences.

If, as a result of not attending court, you’ve been sentenced, convicted, disqualified and/or fined for a criminal or traffic charge in your absence, you can reverse the entire sentence by making an annulment application under section 4 of the Crimes (Appeal and Review) Act 2001 (NSW).

An Annulment application is also referred to as a section 4 application.

If the annulment application is successful, the conviction and/or driver licence disqualification and penalty fine will be reversed and will no longer have effect.

As a result, you will then be placed in the initial position as you were before you failed to appear in court. You will then have the option of either pleading not guilty or pleading guilty to the charge(s)- the process will start over again.

FAQ

How to make a successful annulment application?

The Local Court will only grant an annulment application to reverse your conviction and/or sentence for a criminal or traffic offence if it is satisfied that:

  1. You were not aware of the court date until after the sentence or conviction was imposed by the court in your absence; or
  2. You failed to attend court on the day you were sentenced or convicted due to an accident, illness, misadventure or other compelling reason; or
  3. It would be in the interest of justice, in the circumstances of your case.

You will be required to give evidence to the Magistrate of the Local Court outlining any one of the above grounds of your annulment application.

The best way to give this evidence is by tendering an executed affidavit(s) to the Magistrate outlining the details of either one of the above 3 grounds for the application.

An affidavit is sworn evidence typed into a document similar to a letter outlining your main points.

By using an affidavit, generally you then won’t be required to give your evidence in the witness box in court, and your annulment application can then be dealt with quickly and efficiently.

Procedure for making an annulment application?

An annulment application can only be made after you are either convicted or sentenced in the local court. You can make the annulment application by attending the same local court registry from where you were convicted or sentenced. The registry will ask you to complete a formal annulment application form.

After an annulment application is made at the local court registry, the local court registrar will then notify all relevant parties with the court date, time and location for the annulment application to be heard in court.

On the annulment application court date, the Local Court Magistrate will consider your application.

If you fail in your annulment application, the sentence will ‘stay’, and you will be required to comply with any conditions of it (if any were imposed). However, you may have an avenue to appeal the sentence or conviction (or both) in the District Court.

If the Magistrate grants your annulment application:

  • The conviction and/or sentence will be reversed.
  • If you were disqualified from driving, you will no longer be disqualified.
  • If you received a criminal conviction, you will no longer have that conviction.
  • If you incurred demerit points, you will no longer have that.
  • If you were fined, your fine will no longer remain and any amount paid will be refunded.

On a successful annulment application:

  • In the case of an annulment application regarding your sentence only, you will have an opportunity to prepare and properly present your case for a sentence again. This can result in a better outcome.
  • In the case of an annulment application regarding your conviction only, you will have an opportunity to start over again by having the option of pleading guilty or not guilty to the charge(s).

It is common practice to prepare relevant documents such as affidavits to outline any compelling reasons why you failed to appear in court, causing the conviction or sentence being imposed in your absence.

An affidavit is considered sworn evidence. This makes it a strong piece of evidence which the Magistrate can admit as evidence to consider in your application without the need for you to necessarily give your evidence in the witness box.

It is important to ensure that all relevant points are outlined in the affidavit, and for the affidavit to be properly executed before handing it up to the Magistrate as evidence.

What are the time limits for making an annulment application?

You have within 2-years from the date of your sentence or conviction to make an annulment application.

To lodge this application, you may attend the local court registry where the conviction or sentence took place.

What happens to the existing sentence after the annulment application is made but before it is determined in court?

Under section 7 Crimes (Appeal and Review) Act 2001 (NSW), the local court can ‘stay the execution’ of the sentence concerned as it thinks fit. This means, that if the execution of the sentence is stayed, the sentence is frozen and will have no effect until the annulment application is finalised.

If you were convicted in your absence resulting in the disqualification of your driver licence which later becomes annulled by the court upon a successful annulment application, the effect of the annulment will be prospective, not retrospective. What does this mean?

  • This means, that the licence disqualification that was imposed in your absence by the court, even if without your knowledge, will have legal effect during and up to the time the Local Court grants your annulment application.

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