If you do not attend Court, the Court can do a number of things:
- Adjourn it to allow you to attend and notify you of the new Court date
- Issue a “bench warrant” for your arrest for you to be brought to Court.
- Deal with the matter in your absence.
What if the matter is dealt with in my absence?
If a matter has been dealt with in your absence, a conviction or sentence may be imposed without you being there to defend yourself.
Section 4 of the Crimes (Appeal and Review) Act allows for the Local Court to annul a conviction and/or sentence imposed in your absence (declare it as not legally valid), following the lodging of an annulment application.
There are a number of grounds that the Court will consider to annul a conviction and/or sentence, including if you were unaware of the original Local Court proceedings until after they were completed, or if you were hindered from attending Court due to accident, illness, misadventure or other extenuating circumstances.
It is in the interests of justice to annul the order(s) because of the specific circumstances of your failure to appear.
Annulment application in NSW
If you want to make a section 4 annulment application, it is imperative that it be done as soon as possible as the longer you wait before making the application, the less likelihood of success – it is better to opt for a delay of days, rather than weeks or months. There is an overall time limit of 2 years from the date of the order.
The most important thing to know when making a section 4 annulment application is that evidence is paramount. As you can imagine, the Court has heard every excuse under the sun, probably including “the dog ate my Court Attendance Notice”, therefore you must be able to prove by way of evidence, the reason(s) why you did not attend Court.
Gathering evidence
It is critical to obtain evidence to support your annulment application, as demonstrated in the following examples:
Example 1
If you did not attend Court because you did not receive the Court Attendance Notice (“CAN”), you will first need to consider how the CAN was to be served (provided to you). There are multiple types of CANs:
- Bail CAN – arrested, charged and placed on bail.
- No-bail CAN – arrested and charged but not placed on bail.
- Field CAN – charged at the scene and given the “yellow slip”.
- Future CAN – charged and CAN sent by mail.
In the case of a bail CAN, a no-bail CAN and a field CAN, it would be impossible to argue that you were unaware of the Court proceedings until after they were completed as you were personally handed the CAN.
However, if it was a future CAN, it will be worth checking the address that the CAN was mailed to and ensuring that it is your current address. In the event that they are different, get evidence to prove that you do not reside at the address listed on the Future CAN, for example rental agreements, driver’s licence, rate notices or any formal document showing your residential address.
Example 2
If you did not attend Court because of illness, you should first of all prevent the Court from dealing with your matter in your absence and contact the Local Court call centre before 9:30 a.m. on 1300 679 272 and follow that up with an email to the specific Local Court attaching a Doctor’s certificate evidencing that you are too unwell to attend Court.
If you did not let the Court know beforehand and you intend to rely on your illness as a basis for the section 4 application, it will be important to obtain evidence of the illness.
It is important to know that you cannot make a second section 4 annulment application without the Court granting “leave” (i.e. permission) to do so. If you do not attend Court twice, there ordinarily needs to be a very good reason for the second occasion.
Need some help?
If a matter is dealt with in your absence, it is important that you contact a defence lawyer. Annulment applications can be troublesome especially if you do not have sufficient evidence, and are not properly prepared. Furthermore, the Court may have issued a Bench warrant for your arrest and a defence lawyer will assist you in resolving that issue amicably.
Nyman Gibson Miralis are highly experienced in these types of proceedings. Contact us if you require assistance.
