Solicitors representing defendants in apprehended violence order proceedings are familiar with the immediate consequences that flow from the making of an order. What is less frequently examined is the procedural pathway available to a defendant who did not attend court when the order was made, and the significant legal consequences that flow from successfully pursuing that pathway, particularly in the context of firearms licensing. This article examines the annulment jurisdiction under section 84(1) of the Crimes (Domestic and Personal Violence) Act 2007, its relationship to Part 2 of the Crimes (Appeal and Review) Act 2001, and the implications of a successful annulment for the prohibition in section 11(5)(c) of the Firearms Act 1996.
The Section 84(1) Annulment Jurisdiction
Section 84(1) of the Crimes (Domestic and Personal Violence) Act 2007 provides that a defendant against whom an apprehended violence order has been made may apply for annulment of the order in the same way as an application may be made under Part 2 of the Crimes (Appeal and Review) Act 2001 for annulment of a conviction. This provision is deceptively brief. Its significance lies in the body of law it imports by reference.
Part 2 of the Crimes (Appeal and Review) Act 2001 governs the annulment of convictions and sentences made in the defendant’s absence in the Local Court. Section 4(1A) of that Act confirms that a defendant may only make an annulment application if they were not in appearance before the Local Court when the relevant order was made. Section 4(2) provides that an application must be made within 2 years after the relevant order is made or imposed. There is accordingly a substantial window within which the application may be brought, and practitioners should be alert to this when advising clients who have only recently become aware that an order was made in their absence.
The application must be made in writing and lodged with a registrar of the Local Court that made the original order, in accordance with section 4(4). Section 6 requires that interested parties be notified as soon as practicable of the date, time and place fixed for dealing with the application. The Local Court may deal with the application in the presence or absence of parties, in open court or in private, under section 7(1), and may stay execution of the relevant order pending determination under section 7(2).
The Test for Grant of Annulment
The test for granting an annulment brought by a defendant is found in section 8(2) of the Crimes (Appeal and Review) Act 2001. The Local Court must grant the application if it is satisfied of any one of three grounds: that the defendant was not aware of the original proceedings until after they were completed; that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original proceedings; or that, having regard to the circumstances of the case, it is in the interests of justice to do so.
For a defendant who failed to attend because of confusion about the listing date, the misadventure ground in section 8(2)(b) is directly engaged. Misadventure in this context does not require extraordinary circumstances. Confusion about a court date, particularly where that confusion is explicable and not the product of deliberate disregard for the proceedings, readily satisfies the ground. The interests of justice ground in section 8(2)(c) provides an additional and independent basis where the circumstances of the absence, taken together with the impact of the order on the defendant’s affairs, warrant relief.
Practitioners should note that only one ground need be satisfied. Where the defendant has a clear explanation for their absence, the application should be brought promptly and supported by evidence of the circumstances that prevented attendance, including any communications about the listing date that gave rise to the misunderstanding.
The Annulment is Not the Same as Revocation
It is important to distinguish annulment under section 84(1) from the variation and revocation power under section 73 of the Crimes (Domestic and Personal Violence) Act 2007. The two mechanisms are fundamentally different in their nature, purpose, governing legislation and effect, and the distinction has become critically important following the Court of Appeal’s decision in Commissioner of NSW Police v Murphy [2024] NSWCA 311.
Revocation under section 73 is a power within the domestic violence legislative regime. It operates prospectively, bringing an existing and valid order to an end from the point of revocation. The Court of Appeal has confirmed in Wass v DPP (NSW) (2023) 111 NSWLR 210 and Majumdar v DPP (NSW) [2024] NSWCA 117 that the section 73 power is confined to orders that remain on foot at the time the application is both filed and heard. An order that has expired cannot be revoked. Murphy went further and confirmed that an extension of an AVO under section 73(2)(a) for the purpose of preserving a revocation application is void ab initio, because extension is only valid if it serves the substantial purpose of protecting persons from domestic violence. Extension solely to enable a subsequent revocation to disengage the section 11(5)(c) firearms prohibition is an improper purpose and will not be countenanced.
Annulment under section 84(1) is a different jurisdiction altogether. It is not an exercise of any power conferred by the Crimes (Domestic and Personal Violence) Act 2007. It is the importation, by statutory reference, of the annulment jurisdiction in Part 2 of the Crimes (Appeal and Review) Act 2001. The governing legislation is therefore the Crimes (Appeal and Review) Act, not the domestic violence Act. The purpose of an annulment application is not to vary or end a valid order, but to challenge whether a valid order was ever made in the first place, because the defendant was absent through misadventure and had no opportunity to contest the original application.
Because annulment is a different jurisdiction with a different statutory foundation and a different purpose, the constraints imposed by Murphy have no application to it. A defendant seeking annulment is not invoking the section 73 power and is not pursuing revocation for any purpose, proper or improper. They are pursuing relief under Part 2 of the Crimes (Appeal and Review) Act 2001 on the ground that procedural justice was denied to them through absence. Murphy is simply not engaged.
The Effect of Annulment
The legal effect of a successful annulment is provided by sections 9(3) and 10(1) of the Crimes (Appeal and Review) Act 2001. Section 9(3) provides that the Local Court is to deal with the original matter as if no conviction or sentence had previously been made or imposed. Section 10(1) provides that on being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed.
These provisions operate retrospectively and completely. An annulled order is treated as though it was never made. The defendant is placed in the position they would have occupied had the matter been heard on the merits in their presence. This is a qualitatively different outcome from revocation. A revoked order acknowledges that a valid order existed and operated for a period before being brought to an end. An annulled order, by contrast, never existed as a matter of law.
This distinction is not merely theoretical. It has direct and important consequences for the operation of section 11(5)(c) of the Firearms Act 1996.
The Firearms Act Analysis
Section 11(5)(c) of the Firearms Act 1996 provides that a licence must not be issued to a person who is subject to an apprehended violence order or interim apprehended violence order, or who has at any time within 10 years before the application for the licence was made been subject to an apprehended violence order, other than an order that has been revoked. The provision therefore creates both a current prohibition, while an AVO is on foot, and a prospective prohibition running for 10 years from the date the order last operated.
The expression “apprehended violence order” is a defined term in the Firearms Act. Section 4(1) of the Firearms Act defines “apprehended violence order” as a final apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007, or certain equivalent orders made under predecessor or interstate legislation. An interim apprehended violence order is defined separately.
The definition is confined to final orders. An annulled order is, by operation of section 9(3) of the Crimes (Appeal and Review) Act, treated as never having been made. An order that was never made cannot be a final apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007. It therefore falls outside the statutory definition of “apprehended violence order” in the Firearms Act entirely. Section 11(5)(c) has no subject matter to operate on, because the instrument to which it refers does not legally exist.
This analysis operates at the definitional level and is prior to and independent of any question about the revocation exception. It does not require that the annulled order be brought within the parenthetical exception for orders that have been revoked, because the prohibition itself is never engaged. A person whose AVO has been annulled was never subject to a final apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007 as a matter of law, because the order was never made.
A second independent ground supports the same conclusion. Even if one were to read the definition more broadly, section 11(5)(c) requires that the person be subject to, or have been subject to, an apprehended violence order. The retrospective effect of sections 9(3) and 10(1) of the Crimes (Appeal and Review) Act means the condition of being subject to such an order never arose as a matter of law. There was no order at law to be subject to.
It follows that the prohibition in section 11(5)(c) is not engaged by a successfully annulled AVO. This is a stronger outcome than revocation, which merely brings an existing valid order to an end and requires the defendant to rely on the express exception in section 11(5)(c) for orders that have been revoked. Annulment eliminates the prohibition at its foundation.
Practitioners should note that this analysis has not been the subject of authoritative appellate determination in the context of section 11(5)(c).
The Appeal from a Refused Annulment
If the Local Court refuses the annulment application, a right of appeal to the District Court exists under section 84(2) of the Crimes (Domestic and Personal Violence) Act 2007. Section 84(5B) of that Act expressly contemplates an appeal against the refusal to annul, providing that where the District Court allows such an appeal and remits the matter to the Local Court, the District Court must consider whether to make an interim order under Part 6 of the Act. The provision would be without operation if no appeal against a refusal to annul were available. Section 84(3) makes the relevant provisions of the Crimes (Appeal and Review) Act 2001 applicable to the appeal, and section 11 of that Act provides a 28-day time limit for filing a notice of appeal.
The appeal to the District Court is conducted by way of rehearing on the evidence given in the original Local Court proceedings, consistent with the approach confirmed in Mahmoud v Sutherland [2012] NSWCA 306. Fresh evidence may be received by leave under section 18(2) of the Crimes (Appeal and Review) Act. The District Court must identify error, whether factual, legal or discretionary, in the Local Court’s determination.
Practitioners should note that lodging a notice of appeal does not stay the operation of the AVO under section 85 of the Crimes (Domestic and Personal Violence) Act 2007. An application to stay the order pending appeal may be made, but the court’s discretion is constrained by the need to ensure the safety and protection of the protected person.
If the District Court dismisses the appeal against a refusal to annul, further review is confined to jurisdictional error in the Court of Appeal, as confirmed in Mahmoud. The scope of such review is narrow and confined to the categories of jurisdictional error or other error of law.
Practical Observations
Several practical points warrant emphasis for practitioners advising clients in this area.
First, a client who had an AVO made in their absence should be advised promptly about the annulment pathway. The 2-year time limit under section 4(2) of the Crimes (Appeal and Review) Act is generous, but delay may work against the client’s credibility on the misadventure ground, particularly if the client became aware of the order some time before seeking legal advice.
Second, where the client holds or previously held a firearms licence, the licence will have been automatically revoked upon the making of the AVO under section 24(1) of the Firearms Act. Annulment, if successful, retrospectively removes the order that triggered that revocation. The client should be advised that the effect of annulment on the revocation of the licence should be raised with the Commissioner of Police (CoP). However, the CoP will likely take a cautious approach.
Third, practitioners should be alert to the difference in the 10-year prohibition as between an expired AVO and an annulled AVO. Where an AVO has expired without revocation, the 10-year prohibition runs from the date the order last operated. Where an AVO has been annulled, the prohibition is not engaged at all, because no final apprehended violence order within the meaning of the Firearms Act ever existed. This distinction is of material importance for clients who depend on access to firearms for their occupation or lifestyle.
Fourth, the pathway identified in this article is wholly separate from the revocation mechanism that Murphy has effectively foreclosed where the motivating purpose is access to firearms. Annulment under section 84(1) is not a workaround for Murphy. It is a distinct procedural remedy available to defendants who were denied natural justice by reason of absence from the original proceedings. Where a client has a genuine misadventure explanation for their non-attendance, the annulment pathway should be the first remedy considered, not the last.
Conclusion
Section 84(1) of the Crimes (Domestic and Personal Violence) Act 2007 provides a significant and underutilised remedy for defendants against whom AVOs have been made in their absence. Where the defendant’s absence is explained by misadventure, accident or lack of awareness, the prospects of obtaining annulment are strong. The retrospective effect of a successful annulment, combined with the definitional structure of the Firearms Act 1996, means that an annulled AVO does not engage the section 11(5)(c) firearms prohibition at all. Practitioners advising clients in this area should ensure they are familiar with both the procedural requirements of Part 2 of the Crimes (Appeal and Review) Act 2001 and the downstream consequences of annulment across the firearms licensing regime.