Fighting the small time Infringement $141/0 points

Court proceedings and Legal Process
samualjdh2
Posts: 3
Joined: Thu May 23, 2013 1:18 am

Fighting the small time Infringement $141/0 points

Postby samualjdh2 » Thu May 23, 2013 2:01 am

Conventional Advice is to just pay it whether right or wrong.

But what if there is a valid defence to the charge?

Background information:

Pulled over by cop during massive Police Blitz, in heavy traffic, attempting to cross a tramway to get to the other side.

Alleged Offense:
Road Rules 2009 155A Tramways
(1) A driver (except the driver of a tram, tram
recovery vehicle or public bus) must not drive in a
tramway, unless the driver is permitted to drive in
the tramway under subrule (2).


Possible Defense:
(2) A driver may drive in a tramway if—
(a) it is necessary for the driver to drive in the
tramway to avoid an obstruction; and
(b) when driving in the tramway, the driver does
not move into the path of an approaching
tram or public bus travelling in the tramway.
Note
Obstruction is defined in the dictionary.


Dictionary:
obstruction includes a traffic hazard, but does not include a
vehicle only because the vehicle is stopped in traffic or is
travelling more slowly than other vehicles;


Summary of possible defense:
Point (b), is not likely to be in dispute - no trams around at all. Cop acknowledged this.
Point (a), however, I was trying to not get in the way of other Police Cars in the area (separate to the one which pulled me over) as they were already causing quite an obstruction with all of the Police Activity in the area.

Enough background. I want to know about court process, not able right/wrong/chances etc.

If I did decide to contest it, in general, how feasible is it to defend myself?

Particular questions - Case Specific:
Is there a way to prove in court that there was a Police Blitz in the area at the time of the offense?

How would it stand if it was my word against theirs if they did not agree that the other Police Car(s) were obstructing?

Do Victoria Police use dashcams or voice recorders (that can be used prove things one way or the other), or is the evidence only on the Police Officers' testimony?

Particular questions - Court Specific

Would I need to or have someone else go to all of the possible mention dates in person?

Are there any guides on defending yourself?

Are there any workshops available on how courts work to be prepared for defending yourself? eg: Tips what to wear, how to address the court, follow process
Do organisations like Legal Aid or other organisations help people wishing to defend themselves? Does Legal Aid defend people for free over small matters like this?

If I go to court, and lose, is it possible to have a conviction recorded against me even though the original infringement did not carry a conviction? If so, is it possible for a judge to record non-conviction even if found guilty by the court? And if I could end up with a Guilty with no conviction, how could that affect me later in life (over such a small offense!)?

If I go to court, and win, is it possible to recover costs such as lost wages while I was preparing for, studying for, and attending court to defend myself?

If I hired a professional lawyer, and win, is it possible to recover costs for the lawyer?

Thanks, not sure if I want to fight it - it is just a monetary fine that stings, just want to know what could possibly happen if I did.

Boki
Posts: 918
Joined: Wed Nov 09, 2011 3:52 pm

Re: Fighting the small time Infringement $141/0 points

Postby Boki » Thu May 23, 2013 6:52 am

There are just too many common questions, and not enough reward in answering them due to the fact that it's over something so small.

Hardy
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Re: Fighting the small time Infringement $141/0 points

Postby Hardy » Thu May 23, 2013 8:19 am

I would need to read the police evidence to determine whether or not the court is likely to accept it as proof of the offence.
Legal aid does not assist people with traffic issues.
I don't think this is a demerit points issue, so why not just go through the court process and have fun instead of freaking out about it.

Boki
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Joined: Wed Nov 09, 2011 3:52 pm

Re: Fighting the small time Infringement $141/0 points

Postby Boki » Thu May 23, 2013 1:00 pm

Hardy wrote:so why not just go through the court process and have fun instead of freaking out about it.

8)

Mode100
Posts: 368
Joined: Mon Oct 01, 2012 10:43 pm

Re: Fighting the small time Infringement $141/0 points

Postby Mode100 » Thu May 23, 2013 11:55 pm

It's not scary going to court... Go any day of the week and watch, if you want to see what happens.

I am not a lawyer, etc,etc.

Day
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Re: Fighting the small time Infringement $141/0 points

Postby Day » Fri May 24, 2013 10:48 am

Mode100 wrote:I am not a lawyer, etc,etc.


I like that! Can I use it? :mrgreen:

Mode100
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Joined: Mon Oct 01, 2012 10:43 pm

Re: Fighting the small time Infringement $141/0 points

Postby Mode100 » Sun May 26, 2013 8:49 pm

Haha sure... I've seen people use "IANAL".... But I don't think that's clear enough...

Day
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Joined: Wed Mar 19, 2008 4:51 pm

Re: Fighting the small time Infringement $141/0 points

Postby Day » Sun May 26, 2013 9:16 pm

Mode100 wrote:Haha sure... I've seen people use "IANAL".... But I don't think that's clear enough...




Sweet. Much appreciated!

samualjdh2
Posts: 3
Joined: Thu May 23, 2013 1:18 am

Re: Fighting the small time Infringement $141/0 points

Postby samualjdh2 » Wed Jun 05, 2013 2:31 am

So thinking of making a day of it.

So basically, what's the worse that can happen if the judge doesn't agree. Could I end up with a conviction?

Hardy
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Re: Fighting the small time Infringement $141/0 points

Postby Hardy » Wed Jun 05, 2013 7:51 am

It rarely gets any worse by taking it to court.
This stuff is all explained on the website.

Mode100
Posts: 368
Joined: Mon Oct 01, 2012 10:43 pm

Re: Fighting the small time Infringement $141/0 points

Postby Mode100 » Wed Jun 05, 2013 11:17 pm

Yes you could get a conviction (big deal - Boki feel free to jump in on this, I know how you love that question :mrgreen: )
As I said earlier, I'm no lawyer but if it is proven you could end up with a sect 76 (viewtopic.php?f=23&t=1858&p=10352) not sure that's really a big deal.

Anyway, sounds like you have a non-licence threatening offence. Hardy's site says:
-- SNIP --
If you pay an infringement notice that does not carry any licence loss period (e.g. fail to wear seat belt) no conviction will be recorded against you. You may incur demerit points, but no record will be made on your criminal or traffic history. If you pay the fine (payment instructions are on the TIN) this will bring an end to the matter. You are admitting guilt and accepting the penalty. Save for some camera offence situations, no further steps can be taken after the infringement penalty is paid.
-- SNIP --


Also, if you take it to court, you may end up paying 43-72$ in court costs on top of any amount that is announced at court (viewtopic.php?f=1&t=1458&start=21)


I don't want to scare you but check out this one is Brisbane a while back :shock: :
http://www.couriermail.com.au/news/quee ... 5938360182

Dunno if that can happen here..

Boki
Posts: 918
Joined: Wed Nov 09, 2011 3:52 pm

Re: Fighting the small time Infringement $141/0 points

Postby Boki » Thu Jun 06, 2013 12:07 am

Lol Mode, I've given up.

I pledged to Hardy to make a "page" or FAQ about all of these concerns regarding 'convictions' but it has resulted in more annoying questions and more frustration.

Hardy
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Re: Fighting the small time Infringement $141/0 points

Postby Hardy » Thu Jun 06, 2013 12:09 am

I guess the headline "COSTLY VICTORY" is referring to the costs incurred by the city council in gaining their victory??
The motorist achieved no victory at all. The court can never "halve the fine". The starting point for any fine at court is $0.00. So the court can only ever increase the fine. Perhaps if he had received no fine at all and no costs he might be able to claim a victory.

In Victoria court costs went up this year. Now the court is likely to add about $75 if you lose. If you think you will lose, then no point going to court and risk making things worse and wasting your time. Assuming you intend to win, the court costs should then be zero.

Mode100
Posts: 368
Joined: Mon Oct 01, 2012 10:43 pm

Re: Fighting the small time Infringement $141/0 points

Postby Mode100 » Thu Jun 06, 2013 1:32 am

I realise you're likely to confuse me with your answer Hardy - but if max costs are $75, how did this guy walk away initially having to pay $1800 or so... Are things different up there?

Me personally - I'm an eternal optimist.... Even if the winds are less than a knot, i'll still go out and try and win the race :)

Hardy
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Re: Fighting the small time Infringement $141/0 points

Postby Hardy » Thu Jun 06, 2013 8:10 am

Unlike the police, a city council hires a law firm to prosecute their cases - same as up here - and those legal costs are claimable if the charge is found proved no matter what penalty is imposed by the court. The court first determines guilt, then imposes a sentence, then hears any applications regarding costs. The considerations for determining the amount of the fine are usually separate from the considerations in determining whether to award costs and in what amount. The court has full discretion in whether to award costs and in what amount, subject to what the High Court said in Latoudis v. Casey. The court imposed a fine of $75, but it could have set the fine at any amount it liked up to the maximum allowed by legislation. In Victoria it is common for a city council to be awarded costs of a few hundred dollars in a parking case, and maybe many thousands for prosecuting a breach of planning laws because of the extra complexity and number of expert witnesses.


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