For some criminal charges and many traffic offences, the court can deal with the charge in your absence if you do not come to court. If you have been convicted in your absence, you may be able to ask the court to set aside the original decision and rehear your matter.
You should get legal advice before making an application to set aside a decision.
This information will help you to understand more about rehearings. Find out:
- when you can ask the court to set aside your conviction
- how to apply and what the court will consider, and
- what happens if the court sets aside your conviction.
When can I ask the court for a rehearing?
If you have been convicted of a charge in your absence, you might want to have the original decision set aside so that you can plead not guilty. Alternatively, you might not dispute being convicted, but want to be able to say something about the sentence that should be imposed, including applying for a Spent Conviction Order.
You can only apply to set aside a conviction that was made in your absence, if:
- you did not receive notice of the court date (at all)
- you did not receive notice of the court date with enough time to come to court, or
- you received notice of the court date, but could not come to court for some good reason.
You can apply any time after the original decision was made. It is best to apply as soon as possible. If you apply within 21 days, the court can set aside the original decision without you needing to come to court for the application.
You cannot apply for a rehearing if you are also appealing against the original decision.
How do I apply for my conviction to be set aside?
You will need to complete an Application to Set Aside a Decision (Form 7) and pay the relevant fee. You will also need to file an affidavit with your Form 7 that supports the grounds for your application. These forms and current fee information are available from the Magistrates Court.
Your application must be made to the registry of the court where the original decision was made. You can include multiple charges if the convictions were all made on the same day in the same court.
You should include the following in your application:
- Why you did not attend court for the original decision.
- Why you want the matter reheard.
If the court disqualified you from driving as part of its original decision, you can ask the court in your application to suspend any licence disqualification period until your application is dealt with.
What happens after I apply for a rehearing?
If you apply within 21 days of the original decision, the court can set aside the decision and order a rehearing if it is satisfied that it is in the interests of justice to do so based on your written application.
If the court doesn’t set aside the original decision based on your written application, or if you apply more than 21 days after the original decision, you will be given a date to make your application to a magistrate in court.
You will need to attend court and convince the magistrate that it is in the interests of justice to set aside the original decision. The reasons for why you did not attend the original court date, how long it has taken to make your application, and why you want the matter to be reheard will be important.
What happens if the court sets aside my conviction?
If the court grants your application, the original decision and any sentence imposed by the court are set aside. Any action to enforce the sentence (including a Licence Suspension Order for not paying a fine imposed) is also cancelled.
The court will then rehear the matter and you will have the opportunity to enter a plea of guilty or not guilty. This might happen straight away if everyone agrees, or the charges will be adjourned to another date.
What happens if the court does not set aside my conviction?
If the court does not grant your application, the original conviction stands and any sentence imposed for that conviction can be enforced.
If the court suspended a driver's licence disqualification as part of your application to set aside your conviction, the total length of your licence disqualification does not include the amount of time when the disqualification was suspended by the court.
Magistrates Court of WA
Reviewed: 2 May 2018