Let's say that you were arrested and you got your paperwork for Court and you got the date of Court wrong. Now you realise Court was in fact three days ago and you missed it?
Or you missed court because you were in hospital having surgery and stayed longer than anticipated and were unable to get there or have anyone let the Court know about your predicament.
What if you find out that the Court convicted you in your absence and imposed a harsh sentence on you?
What can be done in these situations?
A person can make what is called an "Annullment Application" to the Local Court of New South Wales.
This is an Application to the Court pursuant to section 4 of the Crimes (Appeal and Review) Act 2001).
If successful, the Court will set aside the convictions and orders made in your absence and give you a chance to defend your matter or be heard in relation to your sentence if you seek to plead guilty.
These applications are quite common in the Local Court, with more than 5,000 a year made. Of those 5,000 made, approximately 80% are successful, which is quite a high success rate*.
When will the Court grant an Annullment Application?
Section 8(1) says that an application must be granted if it is in the interests of justice ot do so.
Most importantly, Section 8(2) says it must if it is satisfied:
(a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or
(b) that the defendant was otherwise hindered by accident, illness, misadventure, or other cause from taking action in relation to the original Local Court proceedings, or
(c) that, having regard to the circumstances of the case, it is in the interests ofjustice to do so.
Breaking this down, you will be successful if you show the Court you did not know about the proceedings at all. This applies for example if the Police did not serve you with your Court papers.
You can also be successful if you were hindered by accident, illness, or misadventure. The Court has taken a wide interpretation to these definitions.
In a recent case that we did, the Court accepted that our client was hindered by misadventure when he mistook what Court date he was supposed to be at Court when he supplied to the Court an Affidavit reasons why he mistook the Court date.
The Court in other cases have accepted mental illness, drug addiction and hospitalisation as hindering persons from attending Court.
Overall, the Court's belief is that persons deserve to be heard in court in person and so long as you are able to provide a genuine explanation (ideally through an Affidavit or written statement) then the Court will grant you an Annullment Application and set your convictions aside.
The Legal Guy is available to appear in all Annullment Applications across Sydney & New South Wales Courts.
*According to Magistrate Heilpern in his paper Annulment Applications in the Local Court for the Reasonable Case Conference, Sydney, March 2017. I'm indebtted to His Honour.
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