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VIC Contesting a speeding fine

Discussion in 'Politics, Laws, Government & Insurance' at netrider.net.au started by undii, Mar 15, 2010.

  1. Well, I'm contesting a speeding fine I got in June I got last year, finally got a summons for the court date. I just got off the phone from Legal Aid who has advised that if I plead not guilty, it then gets set a date for another court session which then I should (have to?) get representation($$?) for this. It's a 20km/h over. From the section after the yarra bld in kew, turn left into Johnson st then go about 1/2-1 km before going to a 60km/h sign and start of businesses/shops etc in Johnson street near Hoddle street. There are no speed signs from the turn in and in my opinion, it's a wide open double lane road/almost like highway. Almost every car does 80 there from my experience so I had wrongly assumed it was 80 km/h. Got pinged one day from 2 police sitting near the 60km/h sign at the bottom of the 'hill'. Funnily enough another person got pinged for the same speed, 80km/h whilst the officer was booking me.

    I was asked why I was speeding, I replied that I didn't know I was speeding, Anyway, I'm going to Preston Legal aid (or whoever they are) tomorrow for the Tuesday drop in service to see what I have to do. I'm going to take a DVD of the section where I travelled to show there are no speed signage and the 'emptiness' of it how when the businesses section it looks like it drops to 60km/h because of the obvious change in surroundings + road. Anyway, just kind of wanted to vent but I'll post my experience tomorrow with what the people at the Preston place think. Anyone have similar stories + what were the outcomes of whatever they did?

    Semi rant over, tomorrow I'll give findings of what I get told :) :angel: Oh also, if I do contest it 'properly' what are the possible costs to me? (from people with knowledge,anecdotal experiences regarding this). Ta
  2. Unfortunately if it is unsigned then it is by default a 50 zone.
    I am not sure how you are expecting to win this, unless the last speed sign you passed was an 80.
  3. Only because it's a "wide open" double lane road both ways which has the 60 km/h speed sign at the beginning of the business section of the road. I guess the 50 km/h is what is the 'killer'. Well, I'd be happy if it instigates someone to actually add signs at that section where there is none in between the turn in road and the 60km/h sign and beginning of businesses. I honestly thought it was 80km/h from the various factors (other cars at that speed and the surroundings). I'll probably be told to plead guilty. At least it gets the officer to court for the time, I won't be able to go as we won't be living in Melbourne anymore by the court date.
  4. A magistrate court level, you wont be able to vary the strict liability of breaking the speed limit. You will need to prove the officers were in error to get off the fine.

    If you plead not guilty all the way and they police make their case which you can't actually defend, the magistrate will rule a guilty outcome. You'll get a chance to say something before sentencing and if they're convinced of your good character and genuineness, you'll avoid additional penalties.

    For $250 the guy at trafficlaw.com.au will review the case against you and offer an opinion. Check out the site.
  5. It would be fantastic if we could actually take such case to court to have it heard and fairly dealt with, so that we receive justice, and the underlying cause is fixed (road speeds are corrected, or signage is improved, etc.). Or even just have the "reasonableness" rule applied to such case.

    Unfortunately that is not the case for traffic offenses Wazza. The magistrate will just apply the law, as written. There seems to be little opportunity to actually listen to a case, and apply justice.

    BTW, follow Rob's advice.
  6. You do not need to have legal representation, though I would advise it if you plan to plead not guilty (I may be biased however). I very much doubt legal aid would provide representation in such a case, so you would have to pay for such representation. In my experience self-defenders who plead not guilty rarely end up with a happy result.

    Should you plead not guilty a new date will be set for the trial. There the prosecution will need to prove you were committing the alleged offence beyond a reasonable doubt. As I understand it speeding in Victoria is an absolute liability offence, which means the defence of honest and reasonable mistake is not available to you (not that it is an easy defence to demonstrate anyway, but in those states where in is a strict liability offence at least the option exists). The fact that you did not realise the speed limit was 60 and that you had not seen a sign indicating this doesn't really help you - as the saying goes, ignorance is no defence. The open nature of the road and other drivers doing 80km/h is of no help either (as F-L points out, the general rule is 50 unless otherwise signed).

    The only real 'defence' available is that the act was involuntary (eg. you blacked out due to some medical condition), but in such a case good luck keeping your licence. Other than that you would need to cast reasonable doubt on the prosecution case, which in the real world means you would need to prove that you were not exceeding the speed limit. Good luck if that's the route you want to take.

    In my personal opinion you have Buckley's chance of getting anywhere by pleading not guilty (and professional opinions typically cost money and wouldn't be posted on a public forum, so that is probably as good as you will get here). However, you are entitled to plead not guilty if you so desire.

    The alternative is to plead guilty. Should be pretty obvious what this entails, but it gives you a chance to put mitigating factors to the Magistrate in relation to sentencing. The Magistrate cannot reduce the sentence to less then what ever the mandatory minimum is, but a reduction is better than no reduction. An early guilty plea is conducive of a reduced penalty - then explain the facts which you believe reduce the seriousness of the crime (eg. open road, light traffic, lack of signage, etc) and any other mitigating factors (eg. financial hardship, good driving record, etc) then hope for the best. With a sympathetic Magistrate you might have it reduced down to the mandatory minimum; at worst you will end up with having to cop the original penalty. This is all pretty easy to do without representation (the Magistrate should directly ask you for anything you believe should be taken into account for sentencing), and if you are really nice to the prosecutor before the call-over (and the prosecutor is in a really generous mood) they may even suggest to the Magistrate that a reduced penalty would be appropriate in this case - keep in mind that any police prosecutor has likely handled thousands of traffic cases and would have heard every excuse imaginable, but they are also used to gruff aggressive defendants who are unable to do themselves any favours.

    Hope that helps. As to costs, well, I don't know what court costs are like in Victoria so I won’t speculate (I am sure someone who knows will post soon enough) - at the very least you won’t have to pay for the prosecution costs, so it should only be the various court (administrative) costs plus you own legal costs (if any).
  7. Pleading not guilty is not an option for you. Ignorance is never considered an excuse in court. Fact is you were doing 80 in a 60 zone. Sorry that is the way it is.

    Guilty with an argument is the way to go for you.
  8. Good advice. Sean Hardy is the guy I would use if I was in trouble.
    Now to correct a few "old wives tales" posted here.
    It is NOT always a bad idea to contest a fine. If you do, the prosecutor has to prove all the elements of the offence were met. If they do not, you win.

    An "involuntary" defence would only work when the offence required "mens rea" or intent to commit, for example murder.
    With most traffic matters you either did it or not. There is no "intent" component.
    But, as I said above, if they cannot prove that all the requirements are met, you didn't (legally) "do" the action even though physically you may have.
    Absolute liabilty in this case means that if they can prove you did it (legally) you are guilty.

    Now, and this is only an example, if the area was not signed correctly, (council put the wrong signs up) you couldn't be done. You were (in this example) "obeying" the limit.

    Obviously, if it's a "slam dunk" case (traffic cam) paying $150 and walking away is often the best option.
  9. Thanks. At least that sums up (nicely in 2-3 posts) on the way that the guilty plea and see what comes of the stuff about no signage. That is if I can even make it to court, we'll have moved by then (1-2 weeks before we are slated to move) and I can't see the police officer wanting to travel a few hours in the day for 'just' a court case.

    Thanks all for the help
  10. Mate I can tell you most cops would love a day off the road to go to court so they are not dealing with Ar$eholes all day (not directed at you but more the domestics and people that want to punch on just for getting a ticket).

    Also note that even though on the Summons it says that you don't have to attend court, if you have elected to have the matter heard at court and don't turn up some Magistrates are issueing a Bench Warrent for your arrest as they don't want to hear it Ex-Parte or whatever its called with the the Act.
  11. 'Voluntariness' (a word I may have just made up) goes to the actus reus, not mens rea. To briefly paraphrase Ryan v R the conduct in question (or rather, the act in question) must have been willed or directed by a conscious decision of the accused (this is separate from any mens rea elements such as intention, omission, negligence, etc.). If the accused's actions/conduct is involuntary it will not be sufficient actus reus for the purpose of criminal liability. An involuntary act would be one where there is no conscious connection between the mind and the body - not just where someone has wilfully blinded themselves to the choices available but where there was no conscious guidance behind the actus reus at all. Classic examples are blackouts, medical fits and 'reflex actions' (in circumstances where a person has willed such a disconnection of consciousness with the goal of achieving the actus reus, or perhaps even negligent of the outcomes of such a willed disconnection of consciousness one could argue a carry through from the voluntary disconnection of consciousness to the involuntary act - though I know of no case where this has been considered, but it is more or less in line with the view on wilful blindness).
    (The line between actus reus and mens rea when it comes to voluntary actions is really very blurred, and it gives me a headache trying to explain it - good thing it is a rare issue).

    Legally speaking raising the issue of an involuntary act isn't actually a true legal defence as the burden is not on the accused to prove their actions were involuntary, rather, when a question of voluntariness is raised it is on the prosecution to prove beyond a reasonable doubt that the actions were indeed voluntary. The issue of in an action is voluntary is very rarely raised at trial, and when it is, it is usually easily dealt with pretty easily by the prosecution - it is usually the last refuge of the desperate. That said, it has come up in a few traffic cases, the classic being Jiminez v R.
    Interestingly, honest and reasonable mistake of fact is also in the same class - it is not a 'real' defence either, at common law the accused need only meet an evidential burden, then in is upon the defence to show, beyond a reasonable doubt, that the mistake of fact was not honest or reasonable.

    Neither strict liability or absolute liability preclude the use of the 'true' defences (duress, necessity, etc). You could, for instance, argue duress if you were booked for speeding if you did so after a bank robber had highjacked your car and instructing you to drive without concern for the law while pointing a gun at you (unlikely circumstances, but hey, the defence is available to you).

    [*Important note - this is all based on my belief that Victoria does not differ in its definition of an absolute liability offence from other Australian jurisdictions - if Victorian legislation states that absolute liability offences require no element of voluntariness or that all defences have are unavailable to an absolute liability offence then the above is obviously not applicable - and I wouldn't put it past you crazy Victorians to have done something silly like that either).

    I don't know, you could make a reasonable argument that such a sign resulted in an honest and reasonable mistake of fact, as the signs were incorrectly placed by the council (therefore the correct speed limit was something other than indicated by the sign). Would be a harsh prosecutor to continue the case though if wrong signage was evident, and they should be following the Model Prosecutor guidelines...
  12. GPM, I would argue that Jiminez v R is a bit left of field for this offence and the arguments to draw us away from strict liabilty for traffic offences would be better to utilise a case that has some similarity to the one at hand. Sure quoting a culpable driving matter relating to lack of sleep can be used for a voluntary action case; and in this case he had some success - He received leave to appeal based on the level of questioning of police.

    However, would it not be better to refer to Kearon v Grant [1991] 1 VR 321. The court held "The defence of honest and reasonable belief is not open on a charge of exceeding 60 kilometres per hour under reg. 1001(c) of the Road Safety (Traffic) Regulations 1988. If the defence of honest and reasonable mistake were applicable, then mistakes could be of two kinds. There could be a mistake of fact, the fact bearing on whether one was in a speed zone, and there could be a mistake of fact as to the speed at which the vehicle was travelling. The intention here is that motorists shall at their peril be aware of the applicable speed limit, and shall then at their peril so govern their speed as to keep within it."

    Note at VR 323; that: "If ever one might expect an intention to impose strict responsibility, it would be in relation to this offence of driving a motor vehicle at an excessive speed".

    My thinking being it would give a more realistic idea of how the court would view the case.
  13. Jiminez is an example for the issue of a voluntary act being an issue relating to the actus reus. It's a good example because the charges in question were of strict liability and thus there was no mens rea, just as for an absolute liability charge. Interestingly he had some success with the voluntariness issue in relation to his collision with the tree (which occurred after he had fallen asleep). No such luck for the charges relating to the dangerous driving he performed before he fell asleep - obviously he was conscious and in control of his actions at the time, regardless of his intentions (as I believe they were also strict liability charges, but I guess no one really concentrates on those as it's not a particularly interesting precedent).

    As a similar case to the OP's situation it is largely useless (as you rightly pointed out). Different facts, different charges, and honestly, I don't think this is any question as to whether the actions in question were voluntary or not. However, it may be useful to someone who commits a traffic offence 'involuntarily' (as per its legal definition).

    As I understand it Kearon is the Victorian precedent for speeding offences being absolute liability (rather than strict as it is in some other States). Seeing as the only difference between strict and absolute liability is that the honest and reasonable mistake of fact defence is not available for an absolute liability offence I think the statement you quoted is pretty clear on its intent.

    A better precedent, on the facts, for the OP's situation, but honestly unless the OP has some defence in the wings you need only look at the prescribed penalties to see what’s coming. A precedent which precludes the use of honest and reasonable mistake of fact is unlikely to be of much use to him on his court day.

    For those states where speeding is a strict liability offence, the defendant could produce evidence demonstrating that could result in them holding an honest and reasonable mistake of fact (that they were travelling less then or at the speed limit) either on the basis of the applicable speed limit or because of what their instruments reported as being the speed travelled at. The burden would then be on the prosecution to prove that the mistake of fact was either not honest or unreasonable (so it helps if you have a good piece of evidence!). Sorry Victorians, you don't have that option.
    As to what constitutes an honest and reasonable mistake of fact, and what evidence would be suitable to raise the issue - well that would be a lengthy discussion in itself - so to recycle a classic legal cop out - 'it would depend largely on the facts of the case' :grin:
  14. the hearing will be held at the court in the area where the offence took place. So it is you that must travel.
  15. All of that wonderful legal argument above is what shits me about that Victorian version of enforcing the road rules. It's our fault, even if we didn't mean to do the wrong thing, or didn't know we were doing wrong thing. It makes no difference if we caused no harm either. Hell, it makes no difference if we committed an offense in the act of saving our lives, or the lives of others (perhaps in overtaking above the speed limit, to avoid a collision). I personally think it is about time some capable Victorians challenged and changed this situation, but how can you do that when all of the offenses are considered our "absolute liability"?

    It would not be such an issue, except the government and councils continue to reduce speed limits on roads once seen as capable of higher speeds, and poorly sign those roads so that Undii's situation can arise. There are many many examples of the same conditions all over Melbourne.

    Undii's infringement should simply forgiven, at his request, on the basis that he caused no harm, was driving at a speed that appeared appropriate for the road conditions, and was driving in a manner consistent with the traffic conditions. Won't happen though. :(
  16. OK fellas lets reign it in just a tad. Obviously some people here have some legal education.
    In the "real" world of the Magistrates courts "case law" is pretty much NEVER used, unless you are a Barrister doing the "complex" cases such as 0.05.
    It's 99.9% procedural, with an occasional argument about "the law" as it applies.

    Kearon is the appropriate case from memory.

    My original post covered the important issues (I believe)

    (i) ALL defended actions require a cost / benefit analysis.
    Being: Is it more costly for me to NOT defend this case?
    Eg: Yes I may pay $1500.00 in legal fees, but I may lose my job and my transport if I lose my licence.

    (ii) Vic traffic offences are absolute liabilty. There is no defence such as "honest mistake", if you did it you are guilty.
    (yes mens rea was an inappropriate way of describing it, but some of us don't have time to write a thesis).

    (iii) The point that the two (pretty good) law essays didnt cover, and this is where a practicing lawyer earns his $$$.......
    If you plead "not guilty" the prosecution then have to prove that all the elements of the offence were met!

    As an example only, and I used this in my first post, if the signage was wrong, and you obeyed the signage, there would probably be a "defence" there, in that you were obeying a speed sign, and that action of obeying the law in one respect led you to break it in another respect.
  17. And that's why many groups are against mandatory (minimum) sentences. In the old days you could go to court, plead guilty, and put facts to the Magistrate which may result in a no conviction recorded (or no fine, or both!). At the very least it could be reduced to a nominal 'slap on the wrist'. The problem is people complained, and complained about lenient Judges/Magistrates (often without actually knowing the circumstances of the case and egged on by the media). End result, politicians removed the discretion, now Magistrates don't have any choice and in the end it is Joe Citizen who suffers.

    I can see why people complain - lord knows if I want to vent some steam I'll normally complain about how some Magistrate/Judge decided to give out some token punishment in a case where I felt it was not warranted. But I am biased, and not the decision maker, probably for good reason. To be fair, there have been other times when I have been shocked by some Magistrate who decided to make an example of someone.

    The power to do that has been removed from the person who could have done it. It can be restored, but no politician wants to appear to be 'soft on crime'.

    You need to shuffle down the other end of the bar table for a while :wink:

    You are right, most Mags court cases centre on the procedural stuff. But most Mags court work is finished at call over (because the defendant pleads guilty and everyone moves on). But if you get a narky Magistrate they may ask you to cite precedent for something - though perhaps prosecutors get that more often as they are meant to have a harder time proving their case, and on a day to day basis will deal with many more cases then a defence lawyer (you haven't lived until you have done a 50-mention day!). As an example a Magistrate once asked me to cite precedent for seeking levy by distress (instead of imprisonment) should the defendant fail to pay their fine. She had me stumped too, something like that should not need precedent. She was a bit grumpy that day though, so I can forgive her (probably had a long list of traffic matters coming up :p ).

    Best advice in this thread so far - same goes for any criminal matter.

    Sorry, I merely wanted to point out that just because the prosecution need not prove intent (or any other mental element) does not mean there are no defences - I should caveat that by saying that those defences may be harder to prove because of it. I would hardly call HARMOF a good defence either, it's pretty hard to raise (or a better way of saying it is it is pretty easy for the prosecution to disprove that honest and reasonable mistake in most cases).

    (and, out of interest, are ALL Victorian traffic offences absolute liability? I would have thought that as the seriousness increased, you would encounter strict and then normal liability offences, as is the norm in criminal law)

    And it only took me 20 minutes to write that! Luckily I am on medical leave so I can spend as much time as I like writing a legal thesis.

    Now I see where you were going, you want to use the incorrect sign to cast (reasonable) doubt on the prosecution’s case. After all, unless the prosecutor had advance notice of the signage issue they are unlikely to have any good evidence to counter it. Tricky, and as you point out, that's what earns a defence lawyer his weekly allotment of shekels. Might not be so effective if the police officer was smart enough to pass that onto the prosecutor, but I would maintain that in such a case the prosecutor should seek to withdraw the matter (and billable hours means you still get your shekels).
  18. I'll have medical cert(s) stating I can't tho, also speaking to legal aid, I was told that when moving, I can call the officer in question, whose name is on the summons sheet, along with a contact number to state the reason(s) why I can't come and if we both agree to it being moved, the court case will be moved.
  19. That is correct.
    Approached the right way most cases can be moved for legitimate reasons.

    As far as GodsPetMonkey's post, m'learned colleague has just about summed it up in his last posting.
  20. I appreciate the educated responses and the like. It's definitely helped me with a few things, I was going in 'gung ho' just because I'm so dismayed at the circumstances of the 'speed trap', we had to go to Geelong on Tue so I couldn't get to the Preston office forthe drop in so I will call the officer/number in question, state my happenings with the court case (moving, injury + pain prevents me travelling 'distance' and waiting as I'll be high as from the oxycontin to help me along without being dragged down in pain) and see what he says about seeing if it can get moved. I'll then see how that goes and go to legal aid drop in service on Tuesday and see what they say/do.

    Once again, thanks all who spend time to help out someone at no cost :)