Have you been issued with a traffic infringement?

Most traffic law offences are dealt with by infringement notices. If your fine is undisputed, then the infringement notice system provides a quick and easy way to deal with it. You can choose to simply pay the fine and accept the loss of any associated demerit points and/or licence suspensions as outlined by the fine.  However, people often disagree with the fine that has been issued to them. Each jurisdiction provides avenues to contest infringement notices.

Why would you dispute?

There are two main reasons people dispute fines:

1.       You did not commit the offence, i.e. ‘not guilty’.

2.       The penalty is too harsh having regard to your personal circumstances or extenuating circumstances in which the offence occurred.

If you find yourself in one of these situations, you can consider disputing your fine.

What are the options to dispute an infringement notice?

There are two ways to dispute an infringement notice:

1.       Request a review

2.       Take the matter to court

Request a review

You can ask that your infringement notice be reviewed by the authority that issued it. Instructions on how to request a review are usually on the infringement notice.

There are strict time limits to lodge your review. It is very important that you lodge your review in time, as often a late review application will not be considered. This detail is usually on the infringement notice.

The reviewing authority will consider whether there are any grounds to withdraw the infringement notice. Some common successful grounds include:

  • the infringement was clearly issued in error
  • there are extenuating circumstances
  • a good driving record

Internal reviews are usually only successful where the grounds for appeal are uncontroversial (i.e. both sides agree what happened). They are not usually a forum to dispute what the law enforcement officer says happened. If your basis for review contradicts the officer’s statement, you will normally need to take the case to court.

Should you request a review?

We strongly suggest seeking legal advice before deciding whether to request a review. The laws in each State and Territory are different. There are a number of traps that you could fall into if you don’t know the particulars of your jurisdiction.

For example, in some jurisdictions, the authority can refer your case to court even if you have not asked for that to happen. In other jurisdictions, requesting a review does not pause the time limit for electing to take your case to court. If you wait for the outcome of your review, then you might miss the deadline to elect to go to court. The grounds for leniency also varies between jurisdictions.

As a NatRoad member, you have access to free legal advice from several sources. NatRoad’s legal advisors can provide advice about penalty notices. The team of lawyers at Ainsley Law also offers free initial consultations for NatRoad members.

Finally, make sure to prepare your review application carefully. If you subsequently take the case to court, your application will often be given to the Magistrate. Anything you have said (or forgot to say) in the application will impact the outcome of your court case.

Taking the matter to court

You can elect for your penalty notice to be referred to court for determination. Instructions on how to elect to go to court are usually on the infringement notice.

The infringement notice will also explain the time limits for lodging your election. It is important that you comply with the outlined time limits as missing the deadline often means your case cannot be referred to court.

If you elected to go to court, you will receive a Court Attendance Notice telling you where and when you need to attend. The case will be listed at the courthouse closest to where the alleged infringement occurred. If you are pleading guilty you can usually move the case to a more convenient location.

You have two options to handle your case:

1.       Plead “not guilty” – i.e. deny committing the offence

2.       Plead “guilty” and request a more lenient penalty

There are two main things that you should consider before taking your case to court:

1.        What are you hoping to achieve and can the court make that order?

Magistrates have limited powers about what types of orders they can make. It is important that you are clear about what your goal is and then check whether the court can do what you want.

For example, a lot of people take penalty notices to court hoping to avoid the demerit points. In many jurisdictions the Magistrate can make an order that means the demerit points are waived or reduced. However, in other jurisdictions such as Victoria, the court has no power to waive demerit points if the person is guilty of the offence. Seek legal advice for further clarification.

2.       Know the risks of going to court

There are risks to taking your case to court. If your case is unsuccessful, you could end up in a worse position than you started. The main risks of going to court are:

Increased fine: Each traffic offence has a ‘maximum penalty’ that the court can impose. This maximum penalty is higher than the amount of the fine on the infringement notice. For example, in NSW the infringement notice for the lowest level speeding fine is $121; however a court can impose a fine up to $2,200.

Criminal conviction: Traffic offences are part of the criminal justice scheme and the court can ‘convict’ you the same way as any other crime.

Court costs: In most jurisdictions, court costs are imposed where a person is found/pleads guilty to an offence. These court costs can sometimes be the same amount or even more than many smaller fines. It can be a nasty surprise to have your fine waived, but then receive a bill for the same amount or more in court costs.

Prosecutor’s costs: Some prosecutors will ask the court for an order that you pay their legal fees if they win the case. These fees can be many thousands of dollars. There is not a lot of consistency in how prosecutors seek costs; for example, in NSW the RMS will routinely seek costs in defended matters, while the police do not. It is a good idea to speak with an experienced traffic lawyer in your jurisdiction to check whether your case is likely to attract prosecutor’s costs.

Licence disqualification: In some jurisdictions the courts have the discretion to disqualify people’s drivers licences for most traffic offences. There are also some offences that carry mandatory disqualifications. Again, it is a good idea to check with an experienced traffic lawyer in your jurisdiction to check whether your offence risks licence disqualification.

In most situations, taking your fine to court will not result in these worst-case scenarios. But it’s important to know where you stand before choosing to take your case to court. Once the election to go to court is made you usually can’t withdraw it.

Where can I find more information to make my decision?

There are many sources of information to help you decide whether to request a review or take your case to court.

  • Photographs of the offence: If your infringement notice relates to a speeding, red light or mobile phone camera the photographs are often available to view online. You can do this by going to the website for the authority that issued the fine.
  •  Check your traffic record: Your traffic record will be one of the most important factors in whether you qualify for leniency. The Magistrate will be interested in what type of offences you have on your record, how many you have and how long ago they occurred. You can download a copy of your traffic record from your licencing authority’s website.
  • Offence codes: In NSW each offence has an allocated ‘offence code’. These are also called ‘Law Part Codes’. This code is included on the penalty notice and Court Attendance Notice. These codes are an invaluable source of information about the offence you have been charged with.

The NSW Judicial Commission has a website where you can look up law part codes on https://lawcodes.judcom.nsw.gov.au/
Here you will find :

  • The maximum penalties for the offence
  • How many demerit points apply to the offence
  • The section of legislation that the offence is contained in
  • Whether it is an offence that court costs can be applied to
  • The time limit from the date of the offence for the prosecution to issue the court attendance notice. If the charge is issued after this period, it may be invalid.

Legal advice

The legal system isn’t always black and white. A lot depends on your individual circumstances. So, while general information that you find online is a useful starting point, it can never replace personalised advice that takes into account exactly what’s happened in your case.

NatRoad’s advisors can provide free advice about penalty notices. Reach out to the team on 1800 272 144.

The team of lawyers at Ainsley Law offer free initial consultations to NatRoad members. You can contact them at www.ainsleylaw.com.au or 0416 224 601.