Published by Geoff Harrison | 19 October 2024
A person may make an application to annul a conviction or sentence if the person was not in appearance before the Local Court when the conviction or sentence was imposed: s4 of the Crimes (Appeal and Review) Act 2001 ('the Act'). Such applications must be made within 2 years of the conviction or sentence, however, a person is entitled to make an application to the Attorney General for annulment at any time: s5 of the Act. A person is not entitled to make more than one application for annulment unless it is with leave of the court: s4(3) of the Act. The circumstances in which an application is to be granted are set out under s8 of the Act. Section 8 is to be given a wide construction: Miller v DPP.
Other Sources:
Cases:
Extracted Legislation:
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 4
Applications to Local Court
(1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Local Court sitting at the place at which the original Local Court proceedings were held.
(1A) An application may be made by the defendant or by the prosecutor. However, an application by the defendant may be made only if--
(a) in the case of an application for an annulment of a conviction--the defendant was not in appearance before the Local Court when the conviction was made, or
(b) in the case of an application for an annulment of a sentence--the defendant was not in appearance before the Local Court when the sentence was imposed.
(1B) A defendant may not make an application for annulment of a conviction or sentence under this section if the defendant had lodged a notice in writing under section 182 of the Criminal Procedure Act 1986 in respect of the offence for which the defendant was convicted or the sentence was imposed.
(2) An application under this section must be made--
(a) within 2 years after the relevant conviction or sentence is made or imposed, or
(b) if an application has been made to the Attorney General under section 5 within that 2-year period, within 2 years after the application under section 5 has been disposed of under this Part.
(3) Except by leave of the Local Court, a person may not make more than one application under this section in relation to the same matter.
(4) An application must be in writing, and must be lodged with a registrar of the Local Court.
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 4A
Annulment of conviction or sentence on motion by Local Court
Without limiting section 4, the Local Court may, on its own motion in the interest of justice, decide to annul a conviction or sentence made or imposed by the Court if the defendant was not in appearance in proceedings before the Court when the conviction or sentence was made or imposed.
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 5
Applications to Attorney General
(1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Attorney General by any person.
(1A) An application under this section may be made at any time after the relevant conviction or sentence is made or imposed.
(2) If satisfied that a question or doubt exists--
(a) as to the defendant's guilt, or
(b) as to the defendant's liability for a penalty,
the Attorney General may refer the application to the Local Court sitting at the place at which the original Local Court proceedings were held.
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 6
Notice of applications
(1) As soon as practicable after an application for annulment is received by the Local Court, the relevant registrar of the Local Court must notify the applicant and other interested parties of the date, time and place fixed for dealing with the application.
(2) The Local Court may deal with an application for annulment, despite any omission or error in the notice or despite the notice having not been served on an interested party, if it is satisfied that the party--
(a) is aware of the date, time and place fixed for dealing with the application and has not been prejudiced as a consequence of the notice having not been served, or
(b) is avoiding service of the notice or cannot, after reasonable search and inquiry, be found.
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 7
Procedure for dealing with applications
(1) The Local Court may deal with an application for annulment in the presence or absence of the parties and in open court or in private.
(2) When dealing with an application for annulment, the Local Court may stay the execution of the sentence concerned subject to such terms and conditions as it thinks fit.
(3) The rules of court made under the Local Court Act 2007 may make provision for or with respect to procedure and evidence for the purposes of the hearing of applications for annulment.
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 8
Circumstances in which applications to be granted
(1) The Local Court must grant an application for annulment made by the prosecutor if it is satisfied that, having regard to the circumstances of the case, there is just cause for doing so.
(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.
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 9
Procedure after decision on annulment of conviction or sentence
(1) The Local Court must notify each of the interested parties of its decision as to an application for annulment or of its decision under section 4A.
(2) If its decision is to annul the relevant conviction or sentence, the Local Court--
(a) must deal with the original matter afresh (either immediately or at a later date), and
(b) unless it does so immediately, must notify each of the interested parties of the date, time and place fixed for dealing with the original matter.
(3) The Local Court is to deal with the original matter as if no conviction or sentence had been previously made or imposed.
(4) The original matter need not be dealt with by the Magistrate who ordered the annulment of the conviction or sentence, but may be dealt with by any Magistrate, including the Magistrate by whom the matter was dealt with in the original Local Court proceedings.
(5) In this section,
"original matter" , in relation to a conviction or sentence that has been annulled, means the matter the subject of the proceedings from which the conviction or sentence arose.
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 10
Effect of annulment of conviction or sentence
(1) On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed.
(2) The annulment of a conviction for an offence that has been heard together with another offence for which a conviction has been made does not prejudice the conviction for the other offence.
(3) If a fine is annulled, any amount paid towards the fine is repayable to the person by whom it was paid.
(4) The Consolidated Fund is appropriated to the extent necessary to give effect to subsection (3).
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 10A
Part applies to findings of guilt
(1) An application for annulment under this Part, or a decision of the Local Court under section 4A, may be made in relation to a finding of guilt made by the Local Court, whether or not the Court proceeds to conviction, and this Part applies in respect of any such application or decision accordingly.
(2) For that purpose--
(a) a reference in this Part to a
"conviction" includes a reference to a finding of guilt, and
(b) a reference in this Part to a
"sentence" includes any order made under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding a person guilty of an offence.
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 11A
Appeals as of right against Local Court's refusal of application for annulment of conviction
(1) Any defendant whose application under section 4 for annulment of a conviction has been refused by the Local Court may appeal to the District Court against the refusal.
(2) An appeal under this section must be made within 28 days after the Local Court notifies the defendant of its refusal of the application.
(3) Not more than one appeal may be made under this section in respect of any particular conviction.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 3
Interpretation
"sentence" means--
(a) when used as a noun, the penalty imposed for an offence, and
(b) when used as a verb, to impose a penalty for an offence.
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