Convicted in your absence? Annulment Applications in NSW

Being charged with a criminal offence is a stressful and concerning appearance for many. Having to attend court can be a daunting prospect. What happens if, for whatever reason, you miss your court date and the court finds the charges against you proved, convicting you in your absence? You may have grounds to make an annulment application.

What happens if a person does not attend court?

If an accused fails to attend court, the court can determine the matter in their absence under section 196 of the Criminal Procedure Act 1986 (NSW). Sometimes, instead of hearing and determining a matter in the absence of an accused person court will extend an accused the courtesy of adjourning the matter and direct the Registrar of the court to notify the accused that their matter has been adjourned by the court and that a further failure to attend will result in the court proceeding to deal with the matter in their absence.

In the event of a non-appearance by an accused, the court will often proceed to find the offence(s) against an accused proved and convict an accused in their absence. In doing so, a court will consider the Court Attendance Notice as well as the Police Facts and the accused’s criminal and traffic records, if applicable. The court can potentially adjourn the accused’s matter for sentence and direct that the Registry notify the accused that the accused attend court on the adjourned date, but the court will more likely proceed to sentence an accused, and/or make other consequential orders, such as driver licence disqualifications and Apprehended Domestic or Personal Violence Orders in their absence.

If the court proceeds to sentence an accused in their absence, a court will usually do so by imposing fines for each matter as well as make any other applicable consequential orders in the absence of an accused. If the offences are more serious and warrant consideration for other penalties such as a Conditional Release Order, Community Correction Order, Intensive Correction Order or even imprisonment, the court will issue a bench warrant for their arrest pursuant to section 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the accused to be apprehended and brought to court for sentencing.

How to annul a conviction imposed in my absence. ‘Section 4’ Annulment Applications.

A person who has been convicted in their absence in the Local Court may make an application to annul their conviction. This application is commonly referred to as an Annulment Application or Section 4 Application. The foundation for this application is contained in section 4 of the Crimes (Appeal and Review) Act 2001 (NSW).

Section 4 states that an application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Local Court sitting at the place at which the original Local Court proceedings were held. An application made by a defendant or an accused may only be made if:

  • in the case of an application for an annulment of a conviction, the defendant was not in appearance before the Local Court when the conviction was made, or
  • in the case of an application for an annulment of a sentence-the defendant was not in appearance before the Local Court when the sentence was imposed.

A section 4 application is not available to a defendant who has submitted a written notice of pleading, entering a plea of guilty and seeking to be sentenced in their absence pursuant to section 182 of the Criminal Procedure Act 1986 If a defendant has submitted a written notice of pleading having entered a plea of guilty seeking to be sentenced in their absence and are not satisfied with the outcome, a severity appeal may be lodged with the District Court of NSW.

Any application under section 4 must be made

  • within 2 years after the relevant conviction or sentence is made or imposed, or
  • if an application has been made to the Attorney General under section 5 of the Act within that 2-year period, within 2 years after the application under section 5 has been disposed of.

Except by leave of the Local Court, a person may not make more than one application under this section in relation to the same matter. Should the Local Court hear a section 4 application and refuse to annul the conviction, an appeal to the District Court of NSW may need to be considered under section 11A of the Act. An Annulment Application must be in writing, and must be lodged with a Registrar of the Local Court.

In what circumstances does a court grant an annulment application?

The circumstances in which a court can grant an annulment application is outlined in section 8 of the Crimes (Appeal and Review) Act 2001 (NSW). Under section 8(2), the Local Court must grant an application for annulment made by the defendant 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 of justice to do so.

Section 8 should be given a liberal interpretation as to the circumstances in which an accused had not appeared could be annulled. Therefore, the terms ‘hindered’ ‘misadventure’ or ‘other cause’ are to be interpreted broadly by courts and are not restrictive as to what may be considered when dealing with the reasons why a defendant failed to attend court.

The question of interests of justice has also been held by the courts to be given a wide interpretation. Seeking to ultimately enter plea of not guilty and wishing to defend a matter would be a good reason why a court should annul a conviction imposed in one’s absence. Even if a defendant intended to attend court to enter a plea of guilty, there may be a strong public interest in annulling their conviction and for the matter to proceed by way of a plea of guilty and sentence proceedings. For example, a defendant who was convicted in their absence even though they had intended pleading guilty in the first place can lodge an annulment application and proceed by way of a plea of guilty and sentence proceedings to be able to put material and submissions before a court to advance their case on sentence which they were otherwise not able to do when convicted and sentenced in their absence.

What if I am on bail? The offence of Fail to Appear in Accordance with Bail Undertaking.

In addition to being convicted in one’s absence, a person who is on bail may be charged with an offence of Fail to Appear in Accordance with Bail Undertaking pursuant to section 79 of the Bail Act 2013 (NSW).

Section 79 of the Bail Act 2013 states that:

  • A person who, without reasonable excuse, fails to appear before a court in accordance with a bail acknowledgment is guilty of an offence.
  • The onus is on the person granted bail to prove reasonable excuse.
  • The maximum penalty for an offence against this section (a fail to appear offence) is the maximum penalty for the offence for which bail was granted, subject to this section.
  • A penalty of imprisonment for a fail to appear offence is not to exceed 3 years and a monetary penalty for an offence against this section is not to exceed 30 penalty units.

It is a defence to a charge of failing to appear in accordance with a bail undertaking if the defendant can prove that they had a reasonable excuse for failing to attend court. What is considered a reasonable excuse is not defined and depends on the individual circumstances of a case. It is also a different test to that considered by a court to determine an annulment application.

Practical implications

There can be serious implications which stem from being convicted and sentenced in one’s absence, particularly if the charges are sought to be defended or submissions made on sentence to potentially avoid a conviction or harsher penalties being imposed in the first place. The circumstances and evidence of each case will need to be carefully examined by an experienced criminal defence lawyer. It is therefore important that you consult with an experienced criminal defence lawyer as soon as possible after you have been convicted in your absence of any criminal offence.

The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law matters further.

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