When you are given a court attendance notice or are arrested by the police, you are required to physically attend court on the nominated day unless you have a very good reason not to be there.
If you are dealing with a legal matter and are unable to attend court on the nominated day, the matter may be decided in your absence.
If you are unhappy with the outcome from a court hearing that you weren’t present at, you can fill out an annulment application in some cases and request to have the decision overturned.
What is an annulment?
An annulment is where a court decision is cancelled.
It differs from an appeal in that when you have an appeal, the matter is normally heard again in a higher court.
If you are successful in obtaining an annulment, the matter will be heard again in the same court in which the original decision was handed down.
In what circumstances can I seek an annulment?
Annulments can be granted if you were unable to attend court for a good reason, and a decision to convict you was made in your absence.
Valid reasons for seeking an annulment may be if you were seriously ill or had an accident on the day of your appearance, or were unable to attend due to a misadventure that could not be avoided.
Generally speaking, an annulment is likely to be granted if it’s in the interests of justice.
If you forgot you needed to be at court, or you got the day or time wrong, this is generally not considered a reasonable justification for seeking an annulment.
How do I apply for an annulment?
You can apply for an annulment for up to two years after the date of the conviction or sentencing.
You will need to fill out a Section 4 application for annulment form which can be found at your local court or downloaded, and file it at the court which dealt with the matter.
It’s important to think carefully when filling out an application for annulment as the information on the form will provide the basis for your case.
If you are unsure what to write, it’s a good idea to seek legal advice from an experienced criminal lawyer.
Your lawyer can speak to you about why you weren’t at court and can fill out the application for you.
When filling out the form you will need to say which orders you want to seek annulment for, and what your grounds are.
Once you have stated your reasons for wanting an annulment, you or your lawyer can lodge the form at your local court and pay a filing fee.
You will then be given a court date for your application to be heard.
It’s important to get together any supporting material such as medical reports as they can assist you at the hearing.
What happens in the interim while I wait for my court date?
In some cases, your sentence may be suspended while you wait for the matter to be finalised at court.
If you were released on bail and didn’t attend court, you could be arrested and required to re-apply for bail.
What happens will depend on your situation and the court staff, and your lawyer can help advise you on what you should do.
If the matter you are dealing with concerns an AVO, you may be served with an interim AVO, and it’s important that you abide by the conditions on that while you wait for the matter to be dealt with formally.
What factors will be considered by the magistrate in court?
When making the decision as to whether or not to overturn an order made in your absence, the judge or magistrate will look at a few different factors including:
- Your grounds for seeking an annulment and your reasons for not being present when the orders were made.
- The supporting material you present to prove that your reasons are valid.
- Verbal submissions from you and/or your lawyer and the strength of your argument.
- Whether there were any other circumstances which could have implications for your request.
Other parties may be present at the hearing, including any other people who could be affected by the decision, and the police or prosecuting agency.
What happens afterwards?
If the magistrate has reviewed all the information and decides to reverse the decision previously made in court, you will need to attend court at a later date for the matter to be settled.
The next steps will depend on whether or not you pleaded guilty to the offence the first time, whether you plan to plead guilty this time, and whether or not you are on bail.
Your criminal lawyer will be able to advise you on the next stage.
If you have had a decision made by the local court in your absence and you wish to have it annulled, speak to a lawyer as soon as possible about the steps you will need to take to have the decision reversed and ensure a fair outcome.