Division 1Division 1 Applications and referrals for review
(1) This Part applies to review procedures for convictions, penalties and orders by Magistrates in summary proceedings.(2) The steps for review are listed below:(a) Application to Court
An application is made for an annulment of a conviction, a penalty or an order to a Local Court. An application may also be made to the Minister to have any such matter and any other conviction referred to a Local Court (see this Division).(b) Hearings
Applications are to be dealt with by Magistrates. Specific grounds are set out for granting applications (see this Division).(c) Grant of application
After a decision to annul a conviction, a penalty or an order, the matter is to be reheard by a Local Court (see Division 2).(3) This section does not affect the provisions of this Part that it summarises.
100B Application of Part to sentences
(1) A provision of this Part, or a right to make an application under this Part, about a sentence applies to any order made by a Magistrate on the conviction (or instead of a conviction) of a person, including (but not limited to) the following orders and decisions:(a) an order for compensation or forfeiture or relating to property,(b) an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(c) an order or a decision under section 9 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(d) any other order or decision of any kind whatever made by a Magistrate with respect to a person dealt with for an offence (whether or not the person has been convicted) deferring passing sentence on the person and releasing the person subject to conditions or without conditions,(e) a decision within the meaning of section 42 (3) of the Children (Criminal Proceedings) Act 1987 made by the Children’s Court in respect of an offence committed by a person.(2) In this Part, imposing a sentence is taken to include making an order or a decision referred to in subsection (1).(3) Subsection (1) (e) does not affect the application of section 27 of the Children (Criminal Proceedings) Act 1987.
100C Part does not apply to fines and forfeiture orders
(1) This Part does not apply to a penalty notice enforcement order to which the Fines Act 1996 applies but does apply to a conviction or an order made against a person, or a sentence imposed on a person, in proceedings determined by a Local Court after the annulment of such an order.(2) This Part does not apply to a forfeiture order within the meaning of Part 7A of the Bail Act 1978.
100D Applications for annulment
(1) An application may be made by or on behalf of a person for the annulment of any of the following:(a) a conviction or an order (other than an interlocutory order) made in respect of the person by a Magistrate that was made in the absence of the person,(b) a sentence imposed on the person by a Magistrate in the absence of the person.(2) An application for an annulment of a conviction or an order made by a Magistrate or a sentence imposed by a Magistrate may also be made by or on behalf of any person who is an informant in the proceedings concerned.
(1) An application under section 100D must be in writing to a Local Court.(2) The application must be lodged with a clerk of a Local Court.(3) If the application is lodged with a clerk of a Local Court other than the clerk of the Local Court in which the relevant conviction or order was made or sentence imposed, the clerk with whom the application is lodged must forward the application to the clerk of the other Local Court.(4) The regulations may prescribe the form for applications.
100F Time limit for application
(1) An application for an annulment under section 100D must be made within 2 years of the conviction or order being made or the sentence being imposed.(2) For the purposes of subsection (1) and section 100Q, time does not run during any period commencing when an application is made under this Part and ending when the relevant application is determined.
100G Decisions that may be referred for review
(1) The Minister may refer any of the following matters to the Local Court, if an application is made by any person to the Minister:(a) a conviction or an order (other than an interlocutory order) made against the person by a Magistrate,(b) a sentence imposed on a person by a Magistrate in the absence of the person.(2) The Minister must not refer a matter unless the Minister is satisfied that a question or doubt has arisen as to the guilt of the person or the person’s liability for a penalty.(3) The Local Court to which a matter involving a conviction, an order or a sentence is to be referred is the Local Court in which the conviction or order was made or in which the sentence was imposed.(4) A matter referred to a Local Court by the Minister is to be treated as an application for the purposes of this Part.(5) The Minister may refer a matter under this section at any time after the conviction or order is made or the sentence imposed.
For the purposes of this Part, an applicant is a person who has made an application to a Local Court or the Minister under this Part.
100I Who may deal with applications
A Magistrate sitting alone is to exercise the jurisdiction of a Local Court under this Part.
A clerk of a Local Court to which an application is made or referred must, as soon as possible, refer the matter to the Local Court and give notice to the applicant and the parties interested of the date, time and place on or at which the application is to be determined.
100K Grounds for granting applications
(1) A Local Court must grant an application if the applicant is the informant and if it is satisfied that there is just cause why the application should be granted.(2) A Local Court must grant an application if the applicant is a person other than the informant and if it is satisfied that:(a) the defendant was not aware of the relevant proceedings until the proceedings were completed or the sentence was imposed or the other action was taken, or(b) the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the relevant proceedings, or(c) having regard to the circumstances of the case, there is other just cause why the application should be granted.
100L Procedure for Local Courts dealing with applications
(1) A Local Court may, at its discretion, deal with an application with or without the parties being present and in open court or in chambers.(2) The regulations may make provision for or with respect to procedure and evidence for the purposes of the hearing of applications by Local Courts.
100M Effect on application referred to Local Court if notice of referral not served
A Local Court may proceed to determine an application referred to it despite any omission or error in a notice under section 100J or the notice not being served, if:(a) the Local Court is satisfied that the applicant and the parties interested and concerned had knowledge of the date, time and place on or at which the application was to be determined and were not prejudiced by the omission, error or failure to serve the notice, or(b) the Local Court is satisfied that the applicant is avoiding service of the notice or cannot, after reasonable search and inquiry, be found.
100N Stay of order or sentence
A Local Court dealing with an application may stay the execution of the conviction or the enforcement of the order or sentence concerned subject to such terms and conditions as the Court thinks fit.
(1) A Local Court must give notice of the Local Court’s decision as to an application to all parties interested or concerned.(2) If the matter is to be heard by a Local Court the notice must also notify the date, time and place on or at which the matter will be heard.(3) If a Local Court grants an application to annul a conviction, an order or a sentence, the procedures in Division 2 must be followed.
(1) A person may not, except with the leave of the Local Court, make more than one application in relation to the same matter.(2) A Local Court may grant leave under this section if it is of the opinion that there are sufficient grounds for the application.(3) This section does not prevent a person from making an application under section 100D and an application to the Minister under section 100G in relation to the same matter.
(1) Notices of hearing and all other notices authorised or required to be given under this Part by a Local Court or a clerk of a Local Court may be served on a person:(a) personally, or(b) by post, or(c) by means of a document exchange, or(d) by facsimile transmission or other electronic transmission, or(e) by any other manner prescribed by the regulations.(2) The address for service of any such notice includes:(a) in the case of an applicant, the address of the applicant as shown in the application or some other address notified to the clerk of the Local Court for the purpose of service or, if no such address is shown or notified, the address given by the applicant at the hearing of the information, or(b) in the case of any other person, the address notified to the clerk of the Local Court for the purpose of service or, if no such address is notified, the address given by that person at the hearing of the information.