How to apply to have a conviction set aside

How to apply to have a conviction set aside

If you have been convicted in your absence and need to make an application to have that conviction set aside, then Austral Legal can likely help.

There are three grounds on which a set aside application can be made. First, you did not receive the Court Hearing Notice so you were unaware of the Court date. Second, you received the Court Hearing Notice but with insufficient time to be able to get to Court. Third, you had a valid reason as to why you were unable to attend Court (think medical emergency as opposed to sleeping through your alarm after a big night).

Whilst you may apply at any time to have the conviction set aside, as a general rule you should apply as soon as possible and if you apply within 21 days of the conviction date then the court may set aside the original decision based solely on your written application without you needing to go to court for the hearing of it. However, the court may decide not to set aside the conviction based solely on your written application and under that scenario (or if you apply more than 21 days after the conviction date) your application will be listed for hearing in the registry of the court which recorded the conviction.

To apply you fill-in a Form 7 Application to Set Aside a Decision (which can be downloaded from the Magistrates Court website), an accompanying affidavit and pay the application fee. Your affidavit needs to explain why you did not attend Court on the date the conviction was entered and why you want the charge re-heard by the Court (eg you intend to plead not guilty). The application needs to be made to the same registry of the court where the conviction was entered and if your licence was disqualified as a result of your conviction then you can also apply to have the licence disqualification period suspended until your application is re-heard.

If the court hearing your application then grants it, the original conviction and any sentence imposed is set aside. This includes any enforcement action being cancelled. The court will then re-hear the charge and you will have the opportunity to enter a plea of guilty or not guilty. This may be on the same date or at a later (adjourned) date.

If the court does not grant your application, then the conviction is upheld and any sentence imposed for that conviction can be enforced. If the court suspended a  licence disqualification as part of your application to set aside your conviction, then the total length of your disqualification does not include the time when the disqualification was suspended.

Whatever your circumstances were or are, it may be worth discussing them with us in our $80 SmartMove initial 30-minute discounted consultation to see whether you have grounds on which to make a conviction set-aside application and the likelihood of an application being successful. Further, we can likely offer you a fixed fee through our CourtAssist service pricing if you instruct us further. This means that you will know what your legal costs will be up-front with no hidden surprises down the track.