What do you do if you have been found guilty of an offence and/or convicted by the Court in your absence?

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You may find yourself in a position where you received a Notice from the Local Court that you have been convicted for an offence and you were not aware of the proceedings that lead to the conviction. In this situation, you need to seek immediate legal advice about making an annulment application to the Local Court pursuant to section 4 of the Crimes (Appeal and Review) Act 2001 (NSW) to set aside the conviction and have an opportunity to be heard.

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There is a time limit of two years in which to make the application for an annulment of a conviction. In other words, you must file the application with the same Local Court that sentenced you within 2 years from the date of the sentence: section 4(2) Crimes (Appeal and Review) Act 2001.

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An annulment application can be made by the defendant only if he or she was not before the Court when the conviction or sentence was imposed (section 4A Crimes (Appeal and Review) Act 2001), and the Court is satisfied in the application that the defendant was unaware of the proceedings, was hindered by accident, illness, misadventure or other cause, or it is in the interests of justice to do so: section 8(2) of Crimes (Appeal and Review) Act 2001. When you receive your Notice of Penalty or Notice of Result from the Court which details your sentence, it will often indicate whether the sentence was imposed in the absence of the defendant.

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An annulment application made by the prosecutor must be granted if the Court is satisfied that, having regard to the circumstances of the case, there is just cause for doing so: section 8(1) of Crimes (Appeal and Review) Act 2001.

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If you discover that you have been found guilty of an offence, but your matter has not yet proceeded to sentence, you can also make an annulment application if you wish to be heard in relation to the offence. An annulment may be granted in relation to a finding of guilt made by the Local Court, whether or not the court proceeds to conviction: section 10A of Crimes (Appeal and Review) Act 2001.

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If you submitted a written plea of guilty, pursuant to section 182 of the Criminal Procedure Act 1986 (NSW), you cannot make an annulment application: s 4(1B) Crimes (Appeal and Review) Act.

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If you are considering filing an annulment application to seek a non-conviction for your sentence, it is not necessary. Where a court, dealing with an absent defendant, records a conviction or finding of guilt and issues a warrant, there is no bar to a defendant when subsequently facing sentence being dealt with “without conviction”.

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A defendant who does not appear but is represented by a lawyer at the time of conviction or sentence cannot make an annulment application. A defendant may appear personally or be represented by an Australian legal practitioner: sections 3 and 36 of the Criminal Procedure Act 1986 (NSW) ; McKellar v DPP (2014) 240 A Crim R 285 at [34].

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What if an AVO was made final in your absence?

You may discover that a Apprehended Domestic Violence Order (ADVO) or Apprehended Personal Violence Order (APVO) was made final and in your absence. It is important that you seek immediate legal advice upon discovering such orders being made to set them aside and exercise your right to procedural fairness. Section 84 of the Crimes (Domestic and Personal Violence) Act 2007 provides that a defendant may make an application under Part 2 of the Crimes (Appeal and Review) Act for the annulment (or setting aside) of an AVO in that same way a defendant may make an annulment application in respect of a finding of guilty or the imposition of a sentence in their absence.

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Pursuant to section 84(1B) of the Crimes (Domestic and Personal Violence) Act 2007, the Court may grant an annulment application if it is satisfied that there is a just cause to do so. This section also provides a right of appeal to the District Court of NSW.

 

If you have been found guilty, sentenced for a criminal offence in your absence or had an AVO made final without having the opportunity to be heard, please contact KF Lawyers to arrange a consultation and discuss your options.