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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
it is the only way to improve your
situation, but 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. A
lawyer can tell you what the costs and
risks are. Only you can decide if it is
worth your time and money taking it to
court. If you wish to know what the
costs and risks are in your particular
case, you may need to attend a
conference. If you are at risk of
losing your licence, you need to take
the matter to court to get a better
outcome.
nswers
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?
Assuming you
want to know what a maniac Magistrate could do in your case, the answer
is that for any traffic offence a Magistrate has the power to ban you
from driving a motor vehicle for the rest of your life. For many
offences they can also send you to prison for several months. Perhaps
you should ask what is likely to happen rather than what could
theoretically happen.
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 is
$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.
conference
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., tax
invoice.
In
2010 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 $800.00 to $1,400.00. 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 $1500 in total. I advise clients to
plead guilty when it is in their best
interests to do so.
Defending
a traffic charge usually costs
between $1500 (to negotiate a reduction
in penalty at a contest mention) and
$5000 (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 $3,500 mark if
it goes straight to a hearing. Add
about $1,200 more if it goes through a
contest mention, and add another two or
three thousand if you want to use
expert witnesses. Add even more if you
need to adjourn the hearing date. See
the Legal
Costs
page.
An
experienced barrister may charge in the
range $1,500.00 to over $3,500.00 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 will
be as high (if not higher) than the
lawyers'. Country and interstate cases
will attract travel costs. Before
appearing for a client in a direct
access matter all barristers are
required to enter into a written costs
agreement which tells 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
succesfully defending a case I usually
obtain an order that the prosecution
reimburse most of the defendant's legal
expenses.
An
initial conference with Sean
Hardy costs $300.00 for as long as it
takes to peruse your paperwork, discuss
the matter and advise you on the
options in your case. Usually this
takes about an hour. If your charges are minor and you are unlikely to win, I
will advise you whether you should
represent yourself and give you advice
on how to do that.
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.
free_consultation
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. You should not expect to
receive advice about how you can win
your case at a free consultation.
Lawyers who spend time giving free
advice, or going out of their way to
sign you up by making home visits, are
then under pressure to turn you into a
fee paying client. They want to get
paid for the time they have invested in
you, so their advice is less likely to
be unbiased.
Be aware that many lawyers arrive at court with
an armful of files ready to plead
guilty for all their clients. In many traffic cases it can
take very little time or brain power to prepare and present
a guilty plea. It is easy to see why
some lawyers prefer to plead guilty for
6 clients in a single morning (at about
$1500 each). It is far more lucrative
than spending a whole day in court
defending one client. 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?
I do NOT want you to email to me any documents
unless I expressly tell you to do so. Unsolicited attachments will not
be downloaded or opened. If you are a client I can give you
an email address which will accept attachments. I will open attachments
sent to me by my clients only.
The
following pages may help
you:
On-the-spot-fines
Driving while suspended
Drink
driving
Speeding
Going to Court
Pleading Guilty
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