At Chidiac & Associates, we understand the urgency and uncertainty that can follow a conviction or sentence imposed in your absence. We assess your circumstances, advise on the available legal options and prepare applications supported by relevant evidence and submissions.

If a decision was made in your absence, obtaining advice promptly may be an important first step towards having your matter reconsidered.

What Is an Annulment Application?

An annulment application is a legal application seeking to set aside a conviction or sentence imposed by the NSW Local Court in circumstances permitted by law.

In criminal matters, the principal provisions governing annulment applications are found in Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW).

A defendant may generally apply under section 4 where they were not present before the Local Court when the conviction was recorded or the sentence was imposed, subject to the applicable statutory requirements.

The Court considers the reasons for the absence, the circumstances of the original proceedings and whether the statutory criteria for annulment are satisfied.

An annulment is not the same as an appeal. It is a distinct process intended to address specified circumstances in which a conviction or sentence should be set aside and the original matter reconsidered.

If an application is granted, the original proceedings must be dealt with afresh. This means the matter returns to the relevant Court for further determination, rather than the annulment itself automatically resulting in an acquittal.

When Might an Annulment Application Be Appropriate?

An annulment application may be relevant where a person was convicted or sentenced in their absence and there are circumstances supporting the application.

Examples may include:

• You were unaware that criminal proceedings had been commenced against you.
• You did not know the date on which your matter was listed.
• You were unable to attend Court because of illness or another significant circumstance.
• An accident or other misadventure prevented you from taking action in relation to the proceedings.
• There are circumstances supporting the conclusion that annulment is in the interests of justice.

Whether an application can be made and whether it is likely to succeed depends on the particular circumstances and the statutory requirements.

Missing a court date does not automatically entitle a person to an annulment. The application must be properly prepared and supported by relevant information.

Our Approach to Annulment Applications

1. Assessing Your Eligibility

The first step is to determine whether an annulment application is legally available.

We review the original proceedings, the conviction or sentence, the circumstances of your absence and the applicable statutory requirements.

We also consider whether another legal pathway may be more appropriate, particularly where an annulment application is unavailable or the relevant time limit has expired.

2. Establishing Why You Were Absent

The reasons for your absence are often central to an annulment application.

We take detailed instructions about what occurred and identify evidence that may support your explanation.

Depending on the circumstances, this may include medical certificates, hospital records, travel documents, correspondence, proof of incorrect contact details or other relevant material.

The evidence required will depend on the explanation relied upon and the issues the Court must determine.

3. Preparing the Application and Supporting Material

An effective application must clearly identify the decision being challenged, explain the circumstances relied upon and address the relevant legal requirements.

We assist with preparing the application and supporting material, ensuring that the explanation is presented clearly and that relevant evidence is identified.

Where appropriate, we prepare written submissions addressing the statutory criteria and the reasons the Court should grant the application.

4. Representation Before the Local Court

We can assist in preparing for the determination of the application and, where engaged to do so, represent you before the relevant Court.

This may involve presenting submissions, addressing questions from the Magistrate and responding to issues raised by the prosecution or other interested parties.

Our focus is on presenting your circumstances accurately, addressing the applicable law and advancing the strongest properly available argument.

5. Preparing for the Original Matter to Be Reconsidered

If the application succeeds, the original proceedings must be dealt with afresh.

The next steps depend on whether the original matter involved a disputed charge, a guilty plea or a sentencing decision.

We advise on the implications of the annulment and assist in preparing for the subsequent proceedings, where engaged to do so.

An annulment does not itself determine the outcome of the underlying criminal charge.

The Legal Requirements in NSW

The Two-Year Time Limit

Under section 4 of the Crimes (Appeal and Review) Act 2001 (NSW), an application for annulment must generally be made within two years of the conviction or sentence.

The legislation also restricts a defendant's ability to apply where they were present when the relevant decision was made or where they lodged a written notice of pleading in respect of the offence, subject to the precise statutory requirements.

If you are approaching the two-year deadline, it is important to obtain legal advice promptly.

When Must the Court Grant an Application?

Under section 8(2) of the Act, the Local Court must grant a defendant's application if satisfied that one of the statutory grounds is established. These include circumstances where:

• The defendant was unaware of the original proceedings until after they were completed.
• The defendant was hindered by accident, illness, misadventure or another cause from taking action in relation to the original proceedings.
• Having regard to the circumstances of the case, it is in the interests of justice to grant the application.

The application must be assessed against the legislation and the particular facts. The existence of a reason for missing Court does not necessarily mean the statutory test will be satisfied.

What If More Than Two Years Have Passed?

An alternative mechanism may be available under section 5 of the Act, which permits an application to the Attorney General for a referral of the matter back to the Local Court.

This is a separate process. The Attorney General does not personally annul the conviction or sentence. Rather, the Attorney General considers whether the statutory basis for referring the matter back to the Court is established.

This pathway may be relevant in certain circumstances even where the ordinary section 4 application is no longer available. Its suitability depends on the case and the applicable requirements.

What If My Application Is Refused?

If the Local Court refuses an annulment application, a right of appeal to the District Court may be available under the applicable legislation.

Specific time limits apply, including a general 28-day period following notification of the refusal for an appeal against refusal of an annulment application.

The appropriate procedure and any further options should be assessed promptly, particularly if the original conviction or sentence remains in effect.

What Happens If an Annulment Is Granted?

If the Court grants the application, the original conviction or sentence is set aside and the original matter must be dealt with afresh.

The consequences depend on the nature of the original proceedings.

If you were convicted in your absence: The underlying charge will need to be reconsidered. Depending on the circumstances, you may enter a plea and the matter may proceed to a defended hearing or be otherwise determined.

If you were sentenced in your absence: The Court will reconsider the sentencing matter in accordance with the applicable procedure.

If the original matter involved a guilty plea: The next steps will depend on the circumstances of the plea and the orders made by the Court.

It is important to understand that an annulment does not automatically dismiss the charge, remove every consequence associated with the original proceedings or guarantee a more favourable outcome.

The purpose is to allow the original matter to be reconsidered in accordance with the law.

Why Choose Chidiac & Associates?

Careful Legal Assessment

We assess whether an annulment application is available and identify the statutory requirements that must be addressed.

Thorough Preparation

We focus on the circumstances of your absence, the relevant supporting evidence and the legal basis for the application.

Clear Advice About Your Options

We explain the application process, relevant deadlines and alternative pathways where appropriate.

Focused Courtroom Representation

We prepare submissions directed to the issues the Court must determine and present your circumstances clearly and professionally.

An Individualised Approach

Every application has its own factual and procedural history. We consider your circumstances carefully and provide advice tailored to your matter.

Need to Have a Conviction or Sentence Reconsidered?

If you have been convicted or sentenced in your absence in NSW, do not assume that you have no options.

An annulment application may provide a legal pathway to have the original decision set aside and the matter reconsidered, provided the relevant statutory requirements are met.

At Chidiac & Associates, we can assess your circumstances, explain the available options and assist with preparing your application.

Chidiac & Associates — Prepared. Strategic. Resolute.