Appeals and annulments

Before filing an appeal, you should get legal advice about:

• whether you have a good case to appeal
• the risk of getting a harsher penalty in the district court
• the risk of a costs order being made against you
• what to put in a notice of appeal form.

If you attend court when and are found guilty and sentenced, you may be able to appeal to the District Court.

You can appeal:

• your conviction, if you believe you’re not guilty
• your sentence, if you believe it is too harsh
• the Court’s decision to dismiss your Annulment Application.

If you go to the District Court, you usually can’t get a worse penalty. If the Judge is thinking about giving you a harsher penalty than what you received in the Local Court, they must warn you and give you a chance to withdraw your appeal. This is called a Parker warning. If you withdraw your appeal, the Local Court decision will apply.

Before filing an appeal, you should get legal advice.

You must complete a Notice of Appeal to the District Court form.

You can get a copy of the form from:

• your nearest Local Court registry, or
• the Forms page on the Local Court of NSW website.

In your form, you must state the general grounds for your appeal.

Once you have completed your form, you must file it at a Local Court registry and pay the filing fee.

You can file your completed form at any Local Court in NSW:

• in person
• by post
• by fax
• by email.

If you file your form by post, fax or email, it won’t be processed until you have paid the filing fee.

If you are experiencing financial hardship, you may be able to apply to have your fee postponed, waived or remitted.

For more information, see Fees on the Local Court of NSW website.

Once the registry has processed your form, it will notify you of the date when your appeal will be heard. The registry will also notify the police and the Director of Public Prosecutions (DPP), who will represent the police at the appeal.

You will need to seek the leave (permission) of the District Court to appeal more than 28 days after, and within three months of, the Local Court’s decision.

How to apply

You need to complete an Application for Leave to Appeal.

You can get a copy of this form from:

• your nearest Local Court
• the Forms page on the Local Court of NSW website.

In your form, you must explain why you didn’t file an appeal within 28 days.

You must file this form at the same time you file your Notice of Appeal to the District Court.

The Court’s decision

After hearing your application, the Court may:

• dismiss your application, or
• grant you leave to appeal.

The Court will grant you leave to appeal if it is in the interests of justice to do so.

If the Court grants you leave, it may hear your appeal immediately or adjourn your matter to another day.

You must be ready for the Court to hear your appeal straight after it grants you leave.

Costs

If the Court dismisses your Application for Leave to Appeal, it can make a costs order against you. This means you may have to pay the legal costs of the prosecutor.

If you appeal within 28 days, your sentence will be stayed (stopped) until your appeal is heard.

If you apply for leave to appeal after 28 days but within three months, your sentence will be stayed when you are granted leave.

This includes the suspension or disqualification of your licence, if your licence was suspended or disqualified after you were sentenced.

If your licence was suspended on-the-spot, your licence will remain suspended until the Court hears your appeal. You can ask the Court for an order staying your suspension. The Court will only make a stay order in exceptional circumstances.

When deciding whether there are exceptional circumstances, the Court will consider:

• the strength of the prosecution case
• your need for a licence
• the potential danger to the community if a stay order is made

any other matter the Court thinks is relevant.

You should check with the Registry whether the execution of your sentenced will be stayed until your appeal is heard.

If your licence was suspended or disqualified, you should check with Transport for NSW (TfNSW) that the suspension or disqualification has been stayed before you drive again. If you surrendered your licence, you must get a new licence before you can start driving again.

What will happen at the hearing will depend on whether you are appealing:

• your conviction
• your sentence, or
• both.

Appeal against conviction

If you appeal your conviction, your appeal will be a re-hearing of the evidence that was given at the first hearing. The Court will look at the documents and other items tendered and the transcripts from the first hearing. The lawyer for the DPP will provide the documents from the first hearing to the District Court. The Court will also hear submissions from yourself and the lawyer for the DPP.

In limited circumstances, the Court can allow new evidence to be admitted but only where it is in the interests of justice to do so.

You are entitled to one free copy of the transcript of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.

To get a copy of the transcript from the Local Court hearing, you can:

• apply through the Online Registry website, or
• complete a Transcript Order Form.

For more information, see Transcripts on the Local Court of NSW website.

Appeal against sentence

If you appeal your sentence, your appeal will be a re-hearing of the evidence that was given at the first hearing. You can also introduce fresh evidence. 

The Court will look at the documents and other items tendered and the transcripts from the first hearing. The lawyer for the DPP will provide the documents from the first hearing to the Court. It will also consider any fresh evidence and submissions that you or the lawyer for the DPP provide.

If you have witnesses who are going to give evidence, you must make sure they attend court. If you are concerned about your witnesses not coming to court, you may be able to subpoena them.

Your witnesses may be cross-examined by the lawyer for the DPP.

Warning before increasing your sentence

If you have appealed against your sentence to the District Court, the Court must warn you if it is considering increasing your sentence. This is known as a ‘Parker warning’.

The Court must give you the opportunity to withdraw your appeal. If you withdraw your appeal, the decision of the Local Court will apply.

The Court doesn’t have to warn you if the Crown has appealed your sentence, because you can’t withdraw the Crown’s appeal.

Legal representation

You don’t need to have legal representation at your appeal. You can represent yourself. 

If you want to have legal representation, you may:

• be eligible for a grant of legal aid
• be eligible for advice and/or representation from a Community Legal Centre
• speak to a private lawyer.

Appeal against dismissal of Annulment Application

If you appeal the Local Court’s decision to dismiss your Annulment Application, the Court may:

• grant your application and send your case back to the original court to be re-heard, or
• dismiss your appeal.

Appeal against conviction

If you appeal your conviction, the Court may:

• set aside your conviction
• set aside your conviction and send your case back the original Court for redetermination
• dismiss your appeal.

If your appeal is dismissed, your sentence will take effect.

If you were sentenced to gaol by the Local Court, and granted bail while your appeal was heard, you will be taken into custody.

Appeal against sentence

If you appeal your sentence, the Court may:

• set aside your sentence
• vary your sentence
• dismiss your appeal.

If your appeal is dismissed, your sentence will take effect.

If you were sentenced to gaol by the Local Court, and granted bail while your appeal was heard, you will be taken into custody.

A court may make a costs order against you if your appeal is dismissed.

If you want to apply have your conviction annulled (cancelled), you should get legal advice about:

• the strength of your case
• the risk of a costs order being made against you
• the risk of getting a bigger fine or more serious penalty
• how to write and present your application.

You need to a copy of the form Application to the Local Court.

You can get a copy from:

• your nearest Local Court registry, or
• the Forms page on the Local Court website.

In your application, you must include:

• your name and address
• the names of any other parties, for example NSW Police, Council or RSPCA
• the date you were convicted
• the Court that convicted you
• the details of the offence/s you were convicted of
• the grounds (reasons) for your application (cross out 3 or 4 depending on the circumstances of your case), and 
• your date of birth or driver's licence number, if relevant.

Instructions: Instructions for completing an Annulment Application

Sample: Sample Annulment Application

Once you have completed your form you must file it at a Local Court registry and pay the filing fee.

You can file an annulment application at any NSW Local Court, but your matter will be dealt with at the same court where the original decision was made.

Once the registry has processed your application, you will get a date to go to court.

When your application is heard, you may need to:

• explain why you missed court (you may need to give evidence in the witness box)
• call any witnesses who can support your explanation
• show the Court that you were either not aware of the date of your case, sick, or unable to attend for some other reason
• provide evidence, if you have any (for example a medical certificate).

If you were unable to attend court due to illness, you may want to provide the Court with a medical certificate. The medical certificate should explain why you were unable to attend rather than simply stating that you had a 'medical condition' or 'illness'.

You should take the original and two copies of any documents you want to give to the Court. You will need to give the originals to the Court, and a copy to the prosecutor.

After the Court has heard your matter, it will either:

• annul your conviction, or
• dismiss your application.

The Court annuls your conviction

If the Court accepts your explanation, your conviction will be annulled and your case re-heard, either immediately or at a later date.

The Court must annul your conviction if:

• you didn’t receive your Court Attendance Notice (CAN)
• you were too sick to attend court
• you were involved in an accident on your way to court
• you were delayed because of some other reason, for example, assisting police, arrest, serious traffic delays
• it is in the interests of justice to annul the Court's decision.

An application for annulment might not be granted where you simply forgot to turn up to court, for example because you got your days confused.

If your conviction is annulled, you will need to be ready to tell the Court whether you want to plead guilty or not guilty to the original offence.

If you are pleading guilty, you may be sentenced on the same day. You should have your character references and submissions ready to give to the Court. If you need more time, you can ask the court for an adjournment.

If you are pleading not guilty, your case will usually be adjourned (postponed) to another date for a hearing.

For more information, see Going to court.

The Court dismisses your application

If the Court dismisses your application, the conviction imposed by the Court in your absence will stay in place.

If you haven’t already paid the fine, you will need to respond to the fine as soon as possible.

If the Court dismisses your application, you can appeal to the District Court within 28 days.