How to make an annulment claim in New South Wales: Everything you need to know – Legal process


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What is an action for annulment?

If you fail to appear in court for your hearing or sentencing, the local court can still find you guilty and/or sentence you under section 196 of the Criminal Procedure Act 1986 (NSW). If you are not present in court when a sentence or conviction is handed down, you can make an application to set aside under section 4 of the Crimes (Appeal and Review) Act 2001 (“the law”) to have the decision set aside.

Who can apply for cancellation?

A request can be made by the defendant who has been found guilty or sentenced, or by the prosecutor. A defendant cannot apply if he has written to the court pleading guilty and has asked to be sentenced in his absence under s 182 of the Criminal Procedure Act 1986 (NSW).

How to make a cancellation request?

You will need to download and complete a Cancellation request form. This is on the NSW Local Court website.

Once you have completed the form, you must file it in the local court and pay a filing fee. You can file the claim in any local court in NSW, but the court that made the original decision on your case will deal with it.

You have two years from the date of the court’s decision to make a claim (Art. 2(a)).

What happens while I wait for the new court date?

It’s up to the court to decide what happens while you wait. The local court may “stay the execution” of a sentence as it sees fit (section 7). If he suspends the execution of the sentence, this freezes your sentence and it will not take effect until the finalization of your request.

What factors does the Court consider?

The local court will grant a claim by a defendant if it finds:

  • You were unaware of the original procedure until it was completed; Where

  • You were unable to attend due to accident, illness, mishap or other cause; Where

  • In the circumstances, it would be in the interests of justice to grant the request (Article 8(2)).

The onus is on the applicant to provide evidence to prove that they fall into one of these categories. This may include providing a medical certificate, calling a witness to support your explanation, or other supporting documents or evidence. It’s common for people to prepare an affidavit that explains why you didn’t show up in court. An affidavit is evidence under oath, and it is best to get legal advice when preparing an affidavit.

The local court must grant a request by the prosecutor if there is “just cause to do so” (Art. 8(1)).

What happens if the application is accepted?

If the court grants your request, it will set aside the decision and deal with the case again as if the conviction or sentence had never occurred (section 9). If this happens, any enforcement action taken must be reversed (Art. 10(1)). This includes reimbursement of fines you have paid (Article 10(3)).

The Court may rule on the case immediately or at a later date. You will need to tell the court whether you want to plead guilty or not guilty. If it sets a new date, the Court will notify you, date, time and place.

What happens if the Court rejects the request for annulment?

If your application is unsuccessful, the original conviction or sentence will remain in place. You cannot make more than one cancellation request. If the local court refuses to overturn your conviction or sentence, you can appeal to the NSW District Court within 28 days.

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