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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. They 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.
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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 $54.00 for a
parking ticket, then you should object
and take it to court, and start saving
$2,000.00+ 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.
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, whiile some want all the
above. Whatever your goal is, my
objective is to achieve it for you.
9.
When should I get legal
assistance?
If your licence
has been suspended for drink driving
(under s.51 Road Safety Act) pending
your court case, you should get advice
as soon as possible.
If you have
received an infringement notice 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, however the best
time to get advice is when you have
court papers.
If
you have received court papers (a
charge and summons) then you should
come and see me at least one day prior
to the first court date stated on the
papers.
If
you simply want to know if your
situation presents much hope of a
defence you can complete
this form
and send your papers to me wiht a
cheque for $170.00 to receive a prompt
opinion. I will tell you whether
anything exists that increases the
likelihood that you will save your
licence. Bear in mind that whether or
not a defence exists is not something
you will be able 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.
10.
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 may 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 and get advice then you
need to make an appointment for a
conference. My fee for a conference is
$250.00. My fee for telephone advice is
$250.00. 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.
11.
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
afterhours and on weekends if matters
are urgent. Be aware that
conferences after-hours means I can not
contact the courts, police or VicRoads
to verify facts or request information
during the conference. 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 often helps people people
understand what is in store and reduces
their 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 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.
12.
What will it
cost?
Legal fees, legal costs, legal
expenses, bill of costs., tax
invoice.
In
2008 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
$750.00 to $1,300.00. The most serious cases can cost more.
Fighting
a traffic charge usually costs
between $1500 and $5000 depending 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 will cost
more. A typical defended traffic
offence case usually costs around the
$3,500 mark if it goes all the way to
hearing, and you can double that if you also use expert
witnesses.
An
experienced barrister may charge in the
range $1,500.00 to about $3,000.00 per
day (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 $250.00 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 case is very minor and is unlikely to win, I will
advise you whether you should represent yourself and give you advice on
how to do that.
13.
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.
Beware
of solicitors who arrive at court with
an armful of files ready to plead
guilty for all their clients. It can
take very little time or brain power in
traffc offences 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
$1000 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 defended case.
14.
If I plead not guilty, won't I just
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 does not get any
worse. The police are cool and never
get angry with people who plead not
guilty. Magistrates preside over
defended cases almost every day and
seem to cope with the stress fairly
well.
15. Will my prior convictions be used against me at court?
Only if you lose or plead guilty.
16. Will the court take into account my good driving history?
Only if you lose or plead guilty.
17.
What happens at
court?
Read
Court
Process
18. 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. 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 taken 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. All other cases are NOT urgent and
you should
make an appointment to see me anytime prior to your first court
date. Usually neither you nor I will attend court on the first court
date, so you can stop wondering if I will be able to prepare the case
in time. Generally, the only thing that happens on the first court date
is the case gets adjourned to later date.
The
following pages may help
you:
On-the-spot-fines
Drink
driving
Speeding
Going
to Court
Pleading guilty
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