Section 4 Annulment Applications are used to overturn (‘annul’) convictions and / or sentences imposed by the Local Court in a defendant’s absence.
How do I undertake a Section 4 Annulment Application?
The first step is to fill out an ‘Application to the Local Court’ which is available from any Local Court Registry or can be downloaded from the Local Court website.
The first page of the application will require your details (the applicant) and those of the police officer in charge of your case (the respondent).
The officer’s rank, name and station will be contained on the Court Attendance Notice.
The second page will ask for ‘Order/s Sought’.
You (or your criminal lawyer) should request that ‘The order/s made by the Local Court be annuled’.
That request should be followed by your name, the date of the orders, the court in which the orders were made (eg Downing Centre Local Court) and the type of case (eg common assault, mid range drink driving, AVO etc).
The second page will then ask for the ‘Grounds for Application’.
You (or your criminal lawyer) should state the reasons for making the application.
The first ground should be: ‘That the orders were made in my absence’.
The following grounds should state why you did not attend, for example:
- ‘I was not aware of the Local Court proceedings until after they were finalised’, or
- ‘I was unable to attend court due to illness, accident, personal tragedy or other circumstances’, or
- ‘It is in the interests of justice to annul the orders because of the following circumstances: ……. ‘.
The application should then be filed in court. A filing fee will apply.
Your matter will then be given a ‘hearing date’ in the court where you were convicted or sentenced.
Supporting materials such as medical certificates, evidence of change of address etc should be brought to the hearing.
At the hearing, the Magistrate will review the application and any supporting materials, then hear from you (or your criminal lawyer) and ultimately decide whether or not to reverse the conviction or sentence.
What will the court consider?
The Magistrate will consider:
- The grounds set out in the application form,
- Any supporting materials,
- Verbal submissions from both parties, and
- Any other circumstances such as delay in bringing the application.
He or she will then decide whether it is in the ‘interests of justice’ to overturn the previous orders.
What happens if the application is successful?
Once successful, the next step is to decide how to move forward:
1. Where there was no previous plea of ‘guilty’
If you didn’t previously plead guilty in court, the Magistrate will ask whether you wish to plead guilty or not guilty.
If you plead guilty, the matter will proceed to a sentencing hearing that day or on a later date.
If you plead not guilty, the matter will proceed as normal towards a defended hearing; where witnesses will attend and the court will decide whether you are guilty or not guilty.
2. Where there was a previous plea of ‘guilty’
If you previously pleaded guilty but were sentenced in your absence on a later date, you will be re-sentenced and a different penalty can be imposed.
Is there a time limit?
A Section 4 Annulment Application can be filed up to 2 years after your conviction.