An individual who has been found guilty in absentia within the Local Court has the option to submit a formal request to invalidate the conviction. This formal procedure is commonly referred to as an “Annulment Application” or alternatively, a “Section 4 Application.”
According to Section 4(1) of the Crimes (Appeal and Review) Act 2001 (abbreviated as ‘CARA’), the following provision is in effect:
(1) The possibility to seek the cancellation of a conviction or sentence that was pronounced or imposed by the Local Court is open, and this request can be directed to the Local Court convened at the same location where the initial proceedings within the Local Court transpired.
The submission of this request must be in written form and should be officially lodged through the office of the court registrar that holds jurisdiction over the pertinent court.
The application should be directed to the Local Court situated at the exact location where the initial proceedings in the Local Court took place, which is where the individual received the conviction or sentence. Furthermore, the application needs to be submitted within a timeframe of 2 years from the date on which the pertinent conviction or sentence was rendered or imposed.
When the Local Court renders a conviction, penalty, or sentence in the absence of a defendant, the court’s rulings are subject to review through the mechanism of an section 4 annulment application.
This type of application is initiated under the provisions of Section 4 within the Crimes (Appeal and Review) Act 2001 and necessitates submission within a span of two years from the date of the court’s decision. In exceptional circumstances, an alternative avenue exists whereby a request can be directed to the Attorney General, seeking their intervention to refer the matter back to the Local Court for reconsideration.
The process of lodging annulment applications involves, a person to attend court, presenting written submissions and initiating application to the Registrar of the relevant Local Court that issued the original decision. Although applications can be filed at any Local Court, they are subsequently transferred to the specific Local Court that issued the initial ruling. When it comes to the determination of an application, it’s customary for applicants to personally attend the Local Court that administered the decision in question.
To initiate this process, a filing fee is required for filing or initiating application. However, for individuals with limited financial means, there exists the possibility of the Registrar waiving or deferring this fee, contingent upon the provision of verifiable evidence regarding their existing financial circumstances.
The provisions for granting section 4 annulment applications are detailed in Section 8 of the Crimes (Appeal and Review) Act 2001:
Section 8: Grounds for Granting Applications
(1) The Local Court is required to approve an application for annulment put forth by the prosecutor if it is convinced that, given the specifics of the situation, there exists valid cause to do so.
(2) The Local Court is required to approve an application for annulment submitted by the defendant if it is convinced of the following:
(a) The defendant had no knowledge of the original Local Court proceedings until after their completion.
(b) The defendant was otherwise impeded from taking action in relation to the initial Local Court proceedings due to unforeseen circumstances such as accidents, illness, misadventure, or other justifiable reasons.
(c) Given the circumstances of the case, granting the application aligns with the principles of justice.
It’s important to highlight that the language employed in these provisions mandates action. In instances where the court is convinced of the elements in (1) or (2) (a), (b), or (c) mentioned above, the court is obligated to approve the application.
Interests of Justice
There are a number of case law in NSW, that assists in understanding the ‘interests of justice’ argument on behalf of an applicant.
In Boulghourgian v Ryde City Council [2008] NSWDC, it was stated
The merit of these provisions, which allow for the expeditious disposal of proceedings before magistrates where an accused person chooses not to appear cannot be questioned. Their implementation saves the cost and inconvenience that would otherwise be incurred by requiring the use of resources and the presence of witnesses to present evidence to prove offences, in respect of which an accused person may properly submit to a finding of guilt without the formalities that might otherwise be imposed.
However, as the Court of Appeal has made abundantly clear, the legislation was not intended to produce injustice. Those accused who wish to defend the charges brought against them must be permitted to do so.
In addition, being found guilty of any crime carries substantial weight, irrespective of whether a custodial sentence is imposed. As articulated by Chief Justice Spigelman in R v Ingrassia (1997) 41 NSWLR 447 at 449, “the ramifications of a conviction for an offense often transcend any judicially imposed penalty.
Failing to adhere to the terms of a bond entails significant implications, including the potential for additional incarceration or the denial of bail in subsequent situations, as stated by Justice Harrison’s commentary in R v Maugher [2012] NSWCCA.
What Occurs In the Event of a Conviction Being Annulled?
If your application is successful, the conviction is annulled by the court, the penalty previously issued by the court will be invalidated. The progression of your case will mirror the scenario as if you had been present during the previous proceeding. This entails that you will need to declare your plea of either guilty or not guilty at a later point after the conviction’s annulment.
In relation to the penalty imposed, as per Section 7 of the Crimes (Appeal and Review) Act 2001 in New South Wales, the local court holds the authority to ‘suspend the implementation’ of the relevant sentence according to its own judgment. Essentially, if the sentence’s execution is suspended, the sentence is essentially put on hold and won’t carry any impact until the completion of the annulment application process.
In cases where you were convicted in absentia, leading to the subsequent revocation of your driver’s licence, and this disqualification is later nullified by the court through a successful annulment application, the effect of this nullification will be forward-looking rather than retrospective.
Should the Local Court deny a defendant’s Section 4 application, the defendant retains the right to challenge this refusal through an appeal to the District Court of NSW. This right to appeal is automatic and doesn’t require any special request.
To commence the appeal process, the defendant must formally lodge the appeal within 28 days from the moment the Local Court communicates its decision to decline the application.
Subsequently, the District Court holds the authority to make one of two decisions: either dismissing the appeal or granting it. In the event of the appeal being granted, the matter is then sent back to the Local Court for a fresh review.
It’s important to note that only one appeal is permissible under Section 11A concerning a specific conviction. Consequently, if a client successfully appeals a Section 4 application refusal, leading to the matter returning to the Local Court and resulting in another non-appearance, conviction, and subsequent refusal of a second annulment application, no further appeal can be pursued under Section 11A. Nevertheless, alternative options remain available, such as seeking leave to appeal under Section 12 against the conviction or exercising the right to appeal against the sentence through Section 11.
If you have been convicted in your absence of an offence in NSW, contact our Sydney criminal lawyers today. We will provide you free legal advice for the first 15 minutes and guide you though the legal process.