ANnulment application

Annulment Applications in New South Wales

(Application to Set Aside a Conviction or Sentence in the Local Court)

In New South Wales (NSW), a person who has been convicted or sentenced in the Local Court—without having had the opportunity to appear or be properly heard—may be eligible to apply for an annulment of that decision. This is known as an Annulment Application or Application for Annulment of a Conviction or Order, and it allows the matter to be re-heard as if the conviction or sentence had not occurred.

This process is governed by Part 2, Division 4 of the Crimes (Appeal and Review) Act 2001 (NSW).

What is an Annulment Application?

An annulment application is a request to the Local Court to set aside a conviction or sentence made in the absence of the defendant or in circumstances where the defendant was denied a fair hearing. The purpose of the application is to allow the matter to be reopened and heard afresh.

An annulment is not an appeal. Rather than reviewing the legality of a decision, it seeks to nullify the original outcome and return the matter to the hearing stage.

Grounds for an Annulment Application

Under Section 8 of the Crimes (Appeal and Review) Act 2001 (NSW), a person may apply for annulment if:

  • They were not present when the conviction or sentence was imposed, and they can demonstrate they were unaware of the proceedings or had a valid reason for not attending (e.g. medical emergency, incorrect address).

  • They were denied a reasonable opportunity to be heard, due to procedural unfairness or external circumstances.

  • It is in the interests of justice for the order to be annulled.

The court will not grant an annulment simply because the defendant is dissatisfied with the outcome. There must be a valid and justifiable reason why the original hearing did not proceed fairly or in accordance with proper legal process.

Time Limits and Procedure

An annulment application must be made within 2 years of the conviction or sentence, unless special circumstances justify an extension (Section 9 of the Act).

The steps include:

  1. Filing a Notice of Annulment Application at the Local Court where the order was made.

  2. Providing supporting documentation or affidavits explaining the reasons for the application.

  3. Attending a hearing, where the magistrate will decide whether to grant the annulment.

If the annulment is granted, the original conviction or sentence is set aside, and the matter is listed for rehearing.

Outcomes of an Annulment Application

If the application is successful, the Local Court will:

  • Annul the original conviction and/or sentence; and

  • List the matter for a new hearing, giving the defendant an opportunity to contest the charge or present mitigating factors.

If the application is refused, the original conviction and sentence remain in force, and the applicant may need to consider appealing to the District Court, if eligible.

When to Consider an Annulment

Annulment applications are appropriate in circumstances such as:

  • The defendant did not receive the court attendance notice (e.g. wrong address).

  • The person was unable to attend court due to illness, accident, or another valid reason.

  • The court proceeded without the defendant’s knowledge.

  • There was no legal representation, and the person was disadvantaged.

  • A conviction was entered in absence for a fine-only or minor offence.

It is not suitable where the person simply disagrees with the decision but was present and had the opportunity to be heard.

Legal Representation and Advice

Annulment applications involve both procedural and discretionary elements. The court will require detailed evidence as to why the defendant failed to appear or why the hearing was unjust. It is therefore critical to obtain advice from an experienced criminal lawyer to:

  • Assess whether an annulment is available

  • Draft and file the correct court documents

  • Prepare supporting materials (e.g. medical certificates, statutory declarations)

  • Represent you at the annulment hearing

Properly presented, an annulment can offer a second chance to have your matter dealt with fairly and in accordance with the law.

References

  • Crimes (Appeal and Review) Act 2001 (NSW)

    • Section 8 – Application for annulment

    • Section 9 – Time limits and extensions

    • Section 10 – Procedure for determination

Need to apply for an annulment?
If you have been convicted or sentenced without the opportunity to appear in court or defend yourself, we can help you apply to have the matter annulled. Contact our experienced criminal defence team today for assistance.