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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
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: the Fines
page and legal
costs.
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 $86.00 for a parking
ticket, then you should object and take
it to court, and start saving $3,500.00+
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. A defended hearing will take place
many months after 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 usually
takes several months to receive your
court papers. If you think you need
advice before lodging an objection, then
make an appointment to see me and I can
help you decide whether to take the case
to court.
11.
I have a question that is not answered
on your website. Can I telephone you
to talk about it?
No. I
don't have time to listen to you tell me
about your incident so I can provide
free advice, so if you call me for a
chat you will probably get an unhelpful
response. 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 for free
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 face-to-face
conference or a telephone conference
starts at $400.00.
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 West Melbourne
chambers. Conferences can be arranged
any time to suit clients, even
after-hours and on weekends if it is
urgent. 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. There is no
situation when you should be contacting
the police. If you are thinking of
calling them for any reason whatsoever,
then make an appointment to see me
first. 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
2021 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 $1,400.00 to $2,400.00. 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 $2,000.00 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 $2,000 (to negotiate a
reduction in penalty at a summary case
conference and then plead guilty) to
over $6,500 (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 $5,500 mark if
it goes straight to a hearing. Add about
$1,400 more if it goes through a contest
mention, and add about $3,800 if you
want to use expert witnesses. See
the Legal
Costs
page.
An
experienced barrister may charge in the
range $3,000.00 to over $5,000.00 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 usually costs $400 and
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.
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. 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?
You will need to call 0416 088661 to
obtain the appropriate email address for
sending documents. The fee for me
considering your documents and offering my
advice by telephone is $400. Reading
documentation and providing legal advice
and other legal services is my job, so the
usual fees apply.
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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