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How to defend traffic charges
Answers to common questions
about legal advice and court cases.

 

1. What are my chances of success?

It is usually impossible to give any realistic or practical advice about your chances of success until I have seen all the paperwork for your particular case, including court papers. Coming to a conference before the matter has reached court might be a waste of time if you are expecting an expert opinion about the chances of winning your case. It is not possible for a competent lawyer to conclude that you have no realistic chance of winning unless the lawyer has seen the charge and summons, the court file and preferably the police brief. Just as no doctor will amputate your leg without seeing an Xray, no lawyer should recommend a plea of guilty without getting all the paperwork and eliminating all reasonable prospects of winning.

A further issue is what "success" means in each particular case. In most cases success is having all charges dismissed. On the other hand, some "succeed" by retaining their drivers licence or staying out of prison even though they are found guilty.

Most lawyers have no experience in fighting traffic offences in court. Many will quickly assume you have no chance of winning and will suggest you plead guilty, even before reading all the relevant papers. If you go to one of those lawyers, your chances of winning will be next to nil.

Most people charged with traffic offences are found guilty. That is the way it should be. But every week I have clients who win their case, for a wide variety of reasons. Whether or not your case is one which has any realistic chance of success can be properly determined only after having a conference and reviewing the relevant paperwork. Even in cases where, prior to the court hearing, there does not appear to be any defence available, it does not mean there is no chance of winning. Each year many of my clients win because the police fail to prove essential things in the running of the case. It might depend on how the police run their case, and skill on the part of the lawyer to identify any hole in the prosecution case.

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2. Is it worth my while taking this to court?

Usually going to court is the only way to improve your situation if you have an infringement notice that is going to cost you your licence. Whether it is "worth it" depends on how much you value your licence and how much you are prepared to spend to try to keep your licence.  You will need to weigh up the cost of a court case - combined with the chance of success - against the cost of losing your licence. A lawyer can tell you what the costs and risks of fighting a case are after you have received the charge and summons. Only you can decide if it is worth your time and your money taking it to court to save your licence. If you are at risk of losing your licence, you will have to take the matter to court to get a better outcome. Read also: Is it worth it? and legal costs.

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3. I am about to send you a long email describing a very typical traffic offence. Can you tell me if I should object to the fine?

If the fine carries licence loss, then usually you must object to it if you want to keep your licence. Read the section on Fines.

If the fine carries demerit points, then usually you must object to it if you don't want to incur demerit points. Read the section on Demerit Points.

If you don't like paying $56.00 for a parking ticket, then you should object and take it to court, and start saving $2,700.00+ to pay for your lawyer.

If you want to avoid being unjustly penalised for something you did not do, or you want to avoid a conviction for a licence loss offence, then you must object to the fine.

If you want the court to give you a different penalty to what is stated on the infringement notice, then you should object but remember the court can not reduce mandatory licence loss periods unless you win your case.

You won't need to lodge an objection if you are content to pay the penalty and suffer the consequences (e.g. possible licence loss, demerit points, conviction recorded in licence loss cases, relicencing problems).

 

4. I sent you a long email describing a very typical traffic offence. Do I have a good defence?

Whether your circumstances amount to a good defence depends to a large degree on whether the police version of the incident is the same as yours. Usually they have a different story. If we assume the court will accept the police evidence then your version of events is largely irrelevant. See paragraph one above about the need to see the police statements before expressing an opinion about the strength of the police case. In any case, you do not need a defence. Defence lawyers react to the prosecution evidence. We focus on what the prosecution are doing and what their witnesses will say. For this reason the police documentation is required. What the defendant could say is usually irrelevant, especially when most defendants will not give evidence at court. The correct question is not whether you have a defence but whether the police have a water-tight case. In order to comment on the strength of the police case it is necessary to see it.

 

5. My problem is [blah blah blah]. Can you help me? Will you take this type of case?

Yes. I can help you with any transport related legal problem.

 

6. My defence is [...blah blah blah...]. Will I win?

All cases are winnable. Many clients believe they can find or create a good defence but I find it is quite rare for a client to correctly identify a successful defence to a motor traffic offence so I will never rely on you to find a good defence.

 

7. There is a mistake in the paperwork. Does this matter?

Sometimes the mistake will matter, but generally the mistakes that a client sees are not the sort of mistakes that will affect the case. A mistake needs to breach a law so that the case can not proceed, or can not be proved. The mistake nearly always needs to be discernible to the Magistrate prior to any evidence being given. If you want to tell the court there is an error, the court will want to know what section of what Act has been breached, why it matters, and why the mistake can not be corrected. If you tell the police about the error, they will correct it for you. Mistakes are common. Finding ones that count requires expertise. So do not bother calling to tell me about all the errors you found on the paperwork. The correct course is to give me the paperwork and ask me to show you the errors that matter.


8. What is the worst case scenario for my traffic offence?

For any traffic offence a Magistrate has the power to disqualify you from obtaining a drivers licence for the rest of your life. For some offences they can also send you to prison for many months. You should ask your lawyer what are the likely outcomes if you are found guilty, not what the worst case is.

 

9. How can you help me?

I can help you achieve your goals. Most people want to keep their drivers licence, so saving my client's licence is what I do most. Some want to avoid a conviction or criminal record, and others want to ensure that licence loss occurs at a convenient time and is kept to the minimum. Some people just want to avoid jail, while some want all the above. Whatever your goal is, my objective is to achieve it for you.

 

10. When should I come and see you?

If you have a court date pending, then come and see me at least one day before the first court date.

If your drivers licence has already been suspended for drink driving, then make an appointment to see me as soon as possible.

If you have received an infringement notice, then you will first need to lodge an objection to the fine then come and see me when you have received your court papers. It can take up to a year to receive your court papers. If you think you need advice before lodging an objection, then make an appointment to see me and I will check to see if the infringement notice is valid, and also help you decide whether to take the case to court.

If you simply want to know if your situation presents much hope of a defence you can complete this form and post a copy of your charge and summons to me with a cheque or credit card authorisation for $180.00 to receive a prompt opinion. I will contact you to say whether anything exists that increases the likelihood that you will save your licence and help you decide whether or not to plead guilty. Bear in mind that whether or not a defence exists is not something you are likely to determine without expert legal assistance. If you want to discuss your case with an experienced barrister to have all your circumstances thoroughly considered and receive specialist advice, then you should contact me to make an appointment for a conference.

 

11. I have a question that is not answered on your website. Can I telephone you to talk about it?

No. If you call me to chat about your problem you will probably get an abrupt and unhelpful response, so please don't waste your time. The correct course is either to send me an email with any questions, or post questions on the Motor Traffic Law online forum. I am happy to answer questions at times that suit me. If you want to discuss your problem with me over the phone or in person you will need to make an appointment for a conference. You can make an appointment for a conference by telephone or by email. My fee for a conference or telephone advice starts at $300.00. If you can not come to Melbourne for a conference and you want legal work done, then contact me to request long-distance legal assistance. My clients receive unlimited free telephone advice during the course of their court case.

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12. How can I see you?

To receive personal expert advice at any time, you should book a conference.

I see clients in conference at my Lonsdale Street chambers. Conferences can be arranged any time to suit clients, even after-hours and on weekends if it is urgent. Sometimes I can meet clients outside the CBD if it is convenient. I regularly act for clients, especially country and interstate defendants, without having any face to face meeting prior to the court date.

If no solicitor is acting in your case, I deal with the court and the police whenever the need arises. I attend every court hearing that requires a lawyer to be in attendance. Client's do not need to, and should never, communicate with the court or the police (unless advised to). It is not uncommon for clients to damage their case by saying too much to the court or the police. My clients usually won't have to say anything to the court at any time.

If you have not yet received any charges (court papers) it is usually best to sit tight and come and see me after you receive the charge and summons, although an early conference might help you understand what is in store and reduce your stress and anxiety. I do not over-service people and will not ask you to come in for unnecessary conferences. If you are waiting to receive a charge and summons, do not ask the police to hurry up and serve the papers - that is usually unhelpful. The court papers will inevitably arrive by mail or hand delivery after a few months. When the papers arrive call to make an appointment for a conference as soon as possible. I am required by law to have a costs agreement with clients which sets out the fees I charge. For people seeking advice who can not come to a conference, the relevant fee agreement is here and you agree to be bound by it if you seek legal advice from me. Contact me if you need the agreement sent to you. A different agreement applies if you request court representation.

 

13. What will it cost? Legal fees, legal costs, legal expenses, bill of costs.

In 2012 you should be able to engage a barrister or solicitor to represent you on a plea of guilty in a typical traffic offence within the range $900.00 to $1,500.00. The most serious cases can cost more. For example, having an experienced traffic lawyer handle your case from beginning to end and represent you on a plea of guilty to a first offence of driving whilst suspended should not cost more than $1,500.00 in total.  I advise clients to plead guilty when it is in their best interests to do so. I often advise clients to represent themselves if a lawyer is not going to improve their chances of winning or is not economical.

Pleading not guilty to a traffic charge can cost from $1,800 (to negotiate a reduction in penalty at a summary case conference and then plead guilty) to over $5,000 (for a full-blown one day hearing with a contest mention and plenty of preparation). It all depends on the lengths the defendant wishes to go in fighting the matter. If you wish to leave no stone unturned, and use expert witnesses to challenge scientific instruments, then it might cost more. A typical defended traffic offence case usually costs around the $4,500 mark if it goes straight to a hearing. Add about $1,000 more if it goes through a contest mention, and add about $3,500 if you want to use expert witnesses.  See the Legal Costs page.

An experienced barrister may charge in the range $2,000.00 to over $4,000.00 for defending a case in court (depending on the complexity of the case, what court it is in and the seniority of the barrister). There are many steps in a defended court case which are spread out over many months - See the Court Process page. Every case is different, with different steps, complexities and problems. The daily fee includes some work done in preparing for the hearing. If expert witnesses are required (chemists, doctors, scientists, engineers, radar experts, psychiatrists) their fees can be as high (if not higher) than the lawyers'. Country and interstate cases  incur travel costs. Before appearing for a client in a direct access matter all barristers are required to enter into a written costs agreement which shows the client what fees the barrister will charge. If you have any questions or concerns about costs you should raise them with your lawyer at the earliest opportunity.

After successfully defending a case I usually obtain an order that the prosecution reimburse most of the defendant's legal expenses. 

The starting point in determining whether or not your traffic charges are worth defending is to attend a conference with Sean Hardy, which costs between $300 and $400 and usually takes one hour. It includes a thorough investigation of your case and advice on whether you have a good defence.  If your charges are minor and you are unlikely to get a significant benefit from using a lawyer, I will advise you how you can represent yourself if that is what you wish to do. 


14. What courts do you go to?

I attend all Magistrates Courts in Victoria, all County Courts in Victoria and all Supreme Courts in Victoria. I have also defended charges in NSW, Queensland, Tasmania, South Australia and Western Australia. 

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15. Do you provide a free first consultation like some solicitors do?

All of the information you usually get at a free consultation is already given to you for free on these web pages. After reading these pages you should be able to decide whether or not you wish to take your case further. 

My clients can be confident that my advice is thorough, accurate, experienced and unbiased. It would be unusual to receive advice about how to win your case at a free consultation.  I have won plenty of cases for clients who have previously attended free consultations with lawyers who have told them to plead guilty. Indeed, I encourage you to have at least one free consultation with another lawyer before you come and see me so you can see what the difference is.

There are many lawyers who specialise in pleading guilty for their clients. Pleading guilty is relatively easy compared to fighting for an acquittal. It is easy to see why some lawyers prefer to plead guilty for 6 clients in a single morning rather than spend all day defending only one. Lawyers specialising in pleading guilty tend to have very little or no experience in winning cases. Defendants who plead guilty in Magistrates Court are often represented by a solicitor. People who fight cases are usually represented by a barrister. Because I am a barrister who specialises in defending and winning traffic cases it would be wrong to compare my fees with those charged by solicitors who have never even tried to win a traffic case.  

 

16. If I plead not guilty, will I make the police and the Magistrate angry and make matters worse?

No. Where licence loss is mandatory, pleading guilty will not improve things at all. Unless there is a good chance of going to prison, it can't get much worse. If you have objected to an infringement notice and later lose at court, you are likely to get the same or similar outcome as you would have got had you simply paid the infringement notice. The police are cool and never get angry with people just because they take a case to court or plead not guilty. Magistrates preside over defended cases almost every day and almost all of them seem to cope with the stress fairly well.


17. Will my prior convictions be used against me at court?

Only if you lose or plead guilty.


18. Will the court take into account my good/bad driving history?

Only if you lose or plead guilty.

 

19. What happens at court?

Read Court Process


20. I just received a summons which says my case is in 4 weeks time. I am panicking and need an urgent appointment with you today. What time can you see me?

Your case is probably not urgent so you can stop panicking. If you are in jail, it is urgent. If the police have already suspended your licence for drink driving, it is urgent. If the police are knocking on your door to arrest you or interview you, it is urgent. Otherwise your case is not urgent so you should make an appointment to see me prior to your first court date. In 99% of cases no one actually attends court on the first court date, so you can stop wondering if I will be able to prepare the case in time. I can see you at the next available conference time which is usually at least a week away.  The only thing that happens on the first court date is the case gets adjourned to more convenient date. See Court Process.

 

21. How can I email to you scanned copies of my papers?

Please call Mary on 9225 8062 if you want to email me any documents and she will help you with that. Once you have paid a conference fee I will read documents you send me and offer my opinion and advice.  I give all my clients an email address which will accept emailed attachments.  I don't download or read attachments sent by people who are not clients of mine.

 

 

The following pages may help you:

On-the-spot-fines
Driving while suspended

Drink driving
Speeding
Going to Court
Pleading Guilty