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Applications for Annulment (NSW)

Written by Andrew Carr

Andrew holds a Bachelor of Laws and a Diploma of Teaching from the University of Newcastle. He also holds a Graduate Diploma of Legal Practice from the College of Law. He was admitted to the Supreme Court of New South Wales in 2013 and is a Solicitor of the High Court of Australia. Andrew’s main area of practice is criminal law. Andrew has appeared in Local, District and Children’s Courts as well as in the Federal Circuit Court and Family Court of Australia. He has experience in preparing complex family and civil law matters for Supreme Court proceedings.

When the Local Court convicts, penalises or sentences a defendant and the defendant is not present in court, the court orders are reviewable by way of an application for annulment. Such an application is made under Section 4 of the Crimes (Appeal and Review) Act 2001 and must be lodged within two years of the court decision. In very rare circumstances, an application to the Attorney General to refer a matter back to the Local Court for review may be made.

Annulment applications can be lodged in writing with the Registrar of the Local Court which made the decision. Applications can be lodged at any Local Court, with applications transferred to the Local Court that made the decision. Applicants usually have to attend the Local Court that made the decision when an application is to be determined.

There is a fee for lodging an application. If you are a low-income earner, the Registrar can waive or delay this payment if you can provide proof of your current financial situation.

Procedure

Once an application has been lodged, a court date will be set, and the matter will be listed. If the decision for review was a traffic or criminal matter the Registrar will notify the police. If the matter was an Apprehended Violence Order (AVO), the parties to the application will be notified.

In some circumstances, the court may suspend an order made until the application for annulment has been heard. However, this does not occur with AVO applications.

The hearing of an application provides an opportunity for an applicant to explain why they did not attend court on the previous date. An applicant must satisfy the Local Court that:

  • He/she was not aware of the proceedings, or
  • He/she could not take part in the proceedings because of accident, illness, misadventure or other cause, or
  • Circumstances justify the application being granted.

Any evidence that might assist in satisfying the Local Court, such as witnesses or documents, should be taken to court.

Decision annulled

A successful application will see the court annul the decision. This simply means that the conviction, penalty or order that was made in a defendant’s absence has no consequence.

Once an application for annulment has been granted in regard to a criminal or traffic matter, the accused is required to enter a plea of guilty or not guilty. In the case of an AVO application, a defendant should inform the court of either their consent to the order and to the sought conditions or their opposition to the order being made.

Application Refused

If an application to annul a decision is unsuccessful, the conviction, penalty or orders made in the absence of a defendant will take effect.

An appeal against the refusal to grant an annulment can be lodged within 28 days. Appeals are made to the District Court.

If you require legal advice or representation in any legal matter please contact Go To Court Lawyers.

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