In NSW, when the Local Court convicts or sentences an accused without the accused being present, the accused can make an application to annul the conviction or sentence pursuant to section 4 Crimes (Appeal and Review) Act 2001 (NSW). It should be noted that the annulment application should be made within 2 years of conviction or imposition of sentence.

In deciding whether to grant the application, the Courts consider the circumstances as outlined in section 8 Crimes (Appeal and Review) Act 2001 (NSW):

(2) The Local Court must grant an application for annulment made by the defendant if it is satisfied:

(a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or

(b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or

(c) that, having regard to the circumstances of the case, it is in the interests of justice to do so.

Case Law – “Other cause”- s8(2)(b) Crimes (Appeal and Review) Act 2001 (NSW)

Willis v R [2014] NSWDC 325

In this case, the reason put forward for Mr. Willis missing the hearing date was that his life was in disarray and he was addicted to the prohibited drug ice. He was on bail and was complying with his bail condition of reporting to the Police station but had lost the bail slip containing the hearing date. Mr. Willis left town when he realized that he had missed the hearing.

Cogswell SC DCJ at 10 stated that:

“Self-induced drug intoxication could well be regarded as an illness or a misadventure and certainly as other cause.”

Boulghourigan v Ryde City Council [2008] NSWDC 310

In this case, the reason for missing the hearing date was that the applicant had mixed up his dates. At 80, Bennet DCJ found that:

“Failure of an accused wishing to defend the charges against them to attend court, through mere oversight, should not result in a finding of guilt and conviction as a matter of course.”

Boensch v Commissioner of Fines Administration [2017] NSWCA

In this recent case, the applicant provided that the reason for missing the hearing date was that he was “pre-occupied by being unwell”. The Court interpreted “other cause” narrowly and stated that:

“There is no evidence that it pre-occupied him to the extent of preventing him from carrying out his employment and, if he was not stopped from carrying out his employment there was nothing to preclude him attending to the penalty notice….a failure by a person to lift a finger to make any inquiry does not constitute being hindered by any external events, such as accident, illness, misadventure or other cause”.

“Interest of Justice” – s8(2)(c) Crimes (Appeal and Review) Act 2001 (NSW)

In NSW v Gavrilov [2015] NSWLC 6, Buscombe LCM, the applicant relied on a medical certificate that simply stated that the applicant had “attended for assessment of illness today”. On cross-examination, the applicant could not remember what illness he had been suffering from that day. The court declined to grant an annulment and stated at 42:

“There is no basis on the evidence for any finding that the applicant was too ill, or had an accident or some other misadventure that caused him not to be at Court….when the conviction was recorded”

at 45 the Court elaborated on the interests of justice test, stating:

“The phrase ‘interests of justice’ should be construed widely and is not only concerned with the interest of an accused. There are the interests of the complainant and the prosecution to consider, as well as the interest of the community….”

Pannu Lawyers are located conveniently close to Blacktown Local Court and appear daily in Local Court of NSW, District Court of NSW and the Supreme Court of NSW. If you are charged with criminal offences and/or traffic offences, call our office on 02 9920 1787 to make an appointment.