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Applications for Annulment (NSW)

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

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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